United States v. RODRIGUEZDEJESUS

This opinion is subject to administrative correction before final disposition. Before DALY, GROSS, and de GROOT Appellate Military Judges _________________________ UNITED STATES Appellee v. O’Brian RODRIGUEZDEJESUS Gunnery Sergeant (E-7), U.S. Marine Corps Appellant No. 202300262 _________________________ Decided: 13 July 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: Adam M. King (motions, trial) Benjamin B. Garcia (entry of judgment) Sentence adjudged 18 May 2023 by a general court-martial tried at Ma- rine Corps Base Camp Foster, Okinawa, Japan, consisting of officer and enlisted members. Sentence in the Entry of Judgment: reduction to E-3, confinement for 412 days, and a dishonorable discharge. 1 For Appellant: Lieutenant Benjamin M. Cook, JAGC, USN 1 Appellant was credited with having served 232 days of pretrial confinement and 1 day of judicially ordered confinement credit.  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court For Appellee: Lieutenant Michael G. Osborn, JAGC, USN Lieutenant K. Matthew Parker, JAGC, USN Senior Judge GROSS delivered the opinion of the Court, in which Chief Judge DALY and Senior Judge de GROOT joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ GROSS, Senior Judge: A panel of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of sexual assault (a lesser included offense of rape), one specification of domestic violence (assault consummated by a bat- tery, a lesser included offense of strangulation), and one specification of domes- tic violence (aggravated assault by inflicting substantial bodily harm, a lesser included offense of aggravated assault by inflicting grievous bodily harm) in violation of Articles 120 and 128b, Uniform Code of Military Justice (UCMJ). 2 The charges and specifications arose out of allegations made by Appellant’s wife, Ms. Y.C.C., 3 that Appellant had committed numerous violent offenses upon her over the course of approximately nine months from December 2021 to August 2022. The Government initially charged Appellant with 1 specifica- tion of rape by placing Ms. Y.C.C. in fear of death, 1 specification of sexual assault, 1 specification of kidnapping, and 13 specifications of domestic vio- lence. The members acquitted Appellant of all charges and specifications ex- cept for the lesser included offenses described above. Appellant asserts five assignments of error which we summarize as follows: (1) the military judge abused his discretion by denying Appellant’s three mo- 2 10 U.S.C. §§ 920, 928b. 3 This opinion will refer to the victim and the minor children of Appellant and the victim by initials. All other names besides Appellant, appellate counsel, and the mili- tary judge are pseudonyms. 2  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court tions for mistrial; (2) trial counsel committed prosecutorial misconduct requir- ing reversal; (3) Appellant’s conviction for sexual assault is factually and le- gally insufficient; (4) the military judge abused his discretion in admitting a prior consistent statement of the victim; and (5) cumulative error. Having con- sidered the record as a whole and the pleadings of the parties, we have deter- mined that the findings and sentence are correct in law and fact, and that no error materially prejudicial to Appellant’s substantial rights occurred. 4 I. BACKGROUND A. Facts of the case Appellant and Ms. Y.C.C. were married and lived off base near Marine Corps Air Station Iwakuni, Japan, during the time of the charged misconduct. The couple had been married for about 16 years and had two children together, A.R.C. and B.R.C. By the end of 2021, the couple’s marriage had begun to de- teriorate. Ms. Y.C.C. alleged that in December 2021, Appellant hit her for the first time in their relationship, shoving her and placing his hand on her neck. Ms. Y.C.C. alleged that from December 2021 through August 2022, Appellant engaged in a series of violent offenses against her. Among the allegations were several instances of strangulation, one instance in which she alleged Appellant held a knife to her throat, and one instance in which she alleged Appellant forced her into his car and drove toward a bridge threatening to commit sui- cide. At the time, Ms. Y.C.C. did not make a report to law enforcement for any of these allegations. During the time period surrounding Appellant’s alleged abuse, the couple separated, and Appellant moved out of the family home and into an apartment. However, Appellant still had access to the family home. Ms. Y.C.C. discovered that Appellant was engaged in an affair with Ms. Alpha, who was also married. In June of 2022, Ms. Y.C.C. went with a friend on a vacation to Korea. While on the trip, Ms. Y.C.C. met First Sergeant (1SG) Sierra, U. S. Army. The two subsequently began a relationship that included sending each other sexually explicit text messages. On 4 August 2022, Appellant came to the family home unannounced. Ms. Y.C.C. was in the bathroom when Appellant entered the primary bedroom, and except for wearing a bra, Ms. Y.C.C. was naked. Appellant approached her and began to touch her, telling her that he wanted to be with her. Ms. Y.C.C. be- 4 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866. 3  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court came scared because she had recently had her nipples pierced and was con- cerned with how Appellant would react, since he had told her he did not want her to get the piercings when they were together. Ms. Y.C.C. told Appellant about the piercings. Appellant then became an- gry with Ms. Y.C.C., accusing her of having an affair. He forced her onto the bed and began breaking framed decorations in the primary bedroom. As he broke the decorations, Appellant cut himself with a picture frame. During this confrontation, Ms. Y.C.C. warned Appellant that she was considering getting a Military Protective Order (MPO), and Appellant ultimately left the bedroom. After Appellant left the bedroom, Ms. Y.C.C. texted 1SG Sierra and told him about the confrontation she had just had with Appellant, and sent him a picture of the broken decorations along with what appeared to be blood. In re- sponse, 1SG Sierra texted back and urged Ms. Y.C.C. to report Appellant to his command and law enforcement. Ms. Y.C.C. did not immediately contact the authorities, but returned to the bathroom and began taking a shower. While Ms. Y.C.C. was in the shower, Appellant returned and began groping her. After Appellant left her in the bath- room, he demanded her phone and started going through it. Ms. Y.C.C. was afraid that Appellant would discover her text messages with 1SG Sierra, and she quickly dressed herself. 5 After Appellant took Ms. Y.C.C.’s phone, he dis- covered the text messages from 1SG Sierra encouraging her to report Appel- lant’s abuse. Having read that, Appellant became angry. He asked her “You f****** c******, are you going to report me for real?” 6 He then grabbed her by the throat and “choked” her very hard. Ms. Y.C.C. decided at that moment that she was going to fight back because she was afraid that Appellant was going to find the sexually explicit text mes- sages she had exchanged with 1SG Sierra. Appellant then pushed Ms. Y.C.C. to the floor and got on top of her. As Ms. Y.C.C. screamed, Appellant told her “Scream everything you want, because no one is going to hear you. . . . [T]his is your last day. I’m going to f****** kill you.” 7 Ms. Y.C.C. testified that as she and Appellant were struggling, she believed that Appellant was going to kill her. Appellant eventually got off of Ms. Y.C.C. and began going through her text messages with 1SG Sierra. When he reached the first sexually explicit text message between Ms. Y.C.C. and 1SG Sierra, 5 R. at 1362. 6 R. at 1362. 7 R. at 1364–65. 4  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court Appellant slapped and punched Ms. Y.C.C. Appellant then continued reading the text messages, and after reading each one would continue to strike her. At one point, Appellant hit Ms. Y.C.C. in the ear, causing significant pain and hearing loss. After reading all of the messages, Appellant said to Ms. Y.C.C. “This is how you want him to f*** you? Let me show you how he is going to f*** you.” 8 Ap- pellant then tried to call 1SG Sierra, but he did not answer. Ms. Y.C.C. then kissed Appellant and said “Let’s just forget about this. Let’s try again, now that you know that I have another person. . . . [y]ou finish with [Ms. Alpha]; I finish with [1SG Sierra]; and let’s try again.” 9 Ms. Y.C.C. testified that she said this “Because that was my only opportunity that I saw to stay alive. I was terrified that if he [continued assaulting me] that it will be my last day.” 10 Ms. Y.C.C. testified that after she proposed sex and kissed Appellant, he took off her clothes. 11 After Ms. Y.C.C. kissed Appellant, Appellant penetrated Ms. Y.C.C.’s vulva with his penis, but Ms. Y.C.C. did not respond affectionately to him. After about 2–3 minutes, Appellant stopped penetrating Ms. Y.C.C. and said, “You are not doing this because you love me. You are doing this because you are afraid that I am going to kill you.” 12 Appellant then took Ms. Y.C.C.’s phone and texted SFC Sierra, “You punk, I just finished f***ing her.” 13 After discovering Appellant’s text to 1SG Sierra, Ms. Y.C.C. sent him an- other text, telling him what had just happened. In it, she wrote Hey I am so sorry, this mother f***** came back when I was getting ready to leave the house and found out I was going to the base to report him. I f****** hate him, he got my phone and I forgot to Delete our last conversation from last night. He went to [sic] far this time. He got me naked and want to f*** me after he punched me. He screeshot [sic] us and now have the evi- dence. 14 8 R. at 1372. 9 R. at 1382. 10 R. at 1383. 11 R. at 1383–84. 12 R. at 1384. 13 Pros. Ex. 36. 14 Pros. Ex. 94. 5  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court B. The investigation and trial After Appellant left the house, Ms. Y.C.C. contacted the authorities and went to the Marine Corps Air Station Iwakuni Branch Health Clinic. At the clinic, Ms. Y.C.C. underwent a physical exam as well as a sexual assault foren- sic examination (SAFE). The examinations documented injuries to Ms. Y.C.C.’s face and neck, a ruptured ear drum, and the presence of DNA in Ms. Y.C.C.’s vagina that was consistent with that of Appellant. Members of law enforce- ment interviewed Ms. Y.C.C., and as a result of her allegations, Appellant’s commanding officer ordered Appellant into pretrial confinement. The com- manding officer also authorized a forensic search of Appellant’s cell phone that yielded thousands of text messages between Appellant and Ms. Y.C.C. Many of these messages were in Spanish or a mix of Spanish and English. Ms. Y.C.C. entered into an attorney-client relationship with Captain (Capt) Smith, a Marine judge advocate who was assigned as her Victims’ Legal Coun- sel (VLC). In the course of his representation, Capt Smith contacted trial coun- sel, Capt Tango, to discuss Ms. Y.C.C.’s preference regarding disposition of the charges. After that conversation, Capt Smith sent Ms. Y.C.C. a text message, saying, I just spoke with [Capt Tango]. . . . I explained to him you had a strong desire for [the rape charge] not to be on the charge sheet. I told him it was heavily weighing on you and you did not feel right with that being on there considering your actions during the incident. I explained that this was causing a lot of guilt and we really did not want that specific charge on there. 15 Appellant’s counsel became aware of this conversation after Ms. Y.C.C. sent a screenshot of Capt Smith’s text message to Appellant’s father, Mr. Thomas. Accompanying that text message, Ms. Y.C.C. wrote, . . . one of the charges that NCIS filed I asked my lawyer to please insist that they remove it, and it is [a] rape charge. I have faith that it will be removed, because he didn’t do that to me and I have never accused him of anything they [are] saying. I only told what happened in medical, and they are the ones who have given the name to each incident. 16 15 Appellant’s Mot. to Attach, App’x A, Encl. 1; App. Ex. LXXXVI at 89. We granted Appellant’s Motion to Attach on 18 May 2026. 16 App. Ex. CIX. 6  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court After Mr. Thomas provided Ms. Y.C.C.’s message to Appellant, he filed a request for discovery regarding Ms. Y.C.C.’s and Capt Smith’s communications with trial counsel. On 14 February 2023, Captain Tango provided trial defense counsel with a memorandum for the record (MFR), which stated that Capt Smith contacted him in September 2022 and “expressed . . . that [Ms. Y.C.C.] had concerns about testifying [regarding the sexual assault] because she felt embarrassed and guilty (or words to that effect) about what had happened.” 17 Captain Tango stated that Capt Smith informed him that Ms. Y.C.C. did not want to change her preference for case disposition and that Capt Smith did not relay to him any exculpatory information. 18 After receiving Capt Tango’s MFR, the Defense did not file any motion to compel discovery or seek any other relief related to Capt Tango’s communica- tions with VLC prior to trial. In March of 2023, the Government informed the Defense that it had completed a second forensic extraction of Appellant’s cell phone, but that the contents of the extraction were too voluminous to send electronically. Trial counsel made the extraction available for inspection and invited counsel to obtain a copy from the Iwakuni NCIS office. Ultimately, trial counsel sent a physical copy of the extraction to Appellant’s digital forensic examiner in April 2023. While the Defense did not make any motions relating to the issue of Ms. Y.C.C.’s text chain with her VLC, nor did the Defense file any motions relating to the forensic extraction of his phone prior to trial, the parties did litigate a motion in limine pursuant to Military Rule of Evidence (Mil. R. Evid.) 404(b) regarding other allegations of domestic violence and Appellant’s mental health. Trial began on 28 April 2023. After opening statements, trial counsel be- lieved that many of the text messages contained on Appellant’s phone had be- come relevant based on trial defense counsel’s opening statement. Trial coun- sel then provided notice to the Defense and the military judge that the Gov- ernment intended to introduce those text messages and arranged for a trans- lator to provide certified translations. While the Defense objected to lack of notice, the military judge allowed the Government to use the text messages, subject to their admissibility under the rules of evidence. The ensuing trial, and Ms. Y.C.C.’s testimony in particular, was not with- out incident or objection. At one point, as Ms. Y.C.C. was testifying about an 17 App. Ex. LXXXVI at 94. 18 App. Ex. LXXXVI at 96. 7  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court alleged incident of domestic violence that occurred in December 2022 and try- ing to explain Appellant’s actions, she said, “He’s here, you can ask him.” 19 The military judge immediately stepped in sua sponte, instructing the members to, “. . . disregard that last comment. Wipe that completely from your minds.” 20 He then admonished Ms. Y.C.C. in front of the members “Ma’am, please do not make a comment like that in the future.” 21 Ms. Y.C.C.’s examination remained contentious, and in several instances, trial counsel sought to elicit testimony from Ms. Y.C.C. regarding Appellant’s demeanor, reactions, and suicidal comments or ideations, eliciting objections from defense counsel. The Government justified the admission of this evidence by claiming it was res gestae of the charged offenses. The military judge sus- tained a majority of these objections and frequently held sessions outside the presence of the members, through the use of Article 39(a) sessions to discuss them with counsel. After one such exchange in which the military judge sus- tained an objection relating to Appellant’s desire to have group sex with Ms. Y.C.C. and another man, the military judge inquired as to what instruction the Defense was requesting. Trial defense counsel responded that the military judge didn’t “need to go into what it was about . . . but to disregard the counsel’s last question and the witness’s answer.” 22 The military judge gave the re- quested instruction. 23 Trial defense counsel made three separate motions seeking either a mis- trial or dismissal of the charges and specifications with prejudice. The Defense claimed, in part, that the Government was intentionally eliciting inadmissible information and trying to delay the trial. For the first, the military judge found that while there were delays in the presentation of the evidence, much of the delay was due to the Government’s misapplication of the res gestae doctrine, the evidentiary errors were not intentional, and curative instructions were the appropriate way to handle the missteps that had precipitated the mistrial mo- tion. 24 19 R. at 1035. 20 R. at 1035. 21 R. at 1035. 22 R. at 1379. 23 R. at 1380. 24 R. at 1099–1108. 8  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court The second motion was premised largely on the prosecution’s elicitation of impermissible evidence combined with what the Defense alleged were purpose- ful delay tactics by the Government. However, the military judge again found that the drastic remedies of a mistrial or dismissal with prejudice were not the appropriate remedies. He noted that while the Government could have better prepared its case, he did not believe a mistrial was warranted under the cir- cumstances. 25 The third motion for a mistrial was precipitated when Ms. Y.C.C. was asked to explain on redirect examination why she had not reported Appellant’s do- mestic violence earlier. Ms. Y.C.C. included in her answer that she had told Ms. Alpha about the abuse and asked Ms. Alpha “if she was going through the same thing.” 26 The military judge denied the mistrial motion but sustained the Defense objection to the answer. Later, during Ms. Alpha’s testimony, the sen- ior member of the panel proposed a question to her, asking “During your rela- tionship with the accused, did he ever make you feel concerned for your safety?” 27 The military judge sustained the Defense objection and told the members, “I rule on matters of admissibility and I will not be able to ask that question to this witness.” 28 The Defense did not request any further instruction from the military judge. After a three-week trial, the parties gave closing arguments and the mili- tary judge instructed the panel. The members deliberated for a total of over seven hours prior to reaching findings of guilty only to the lesser included of- fenses of sexual assault, domestic violence (assault consummated by a battery), and domestic violence (aggravated assault by causing substantial bodily harm) relating to Appellant’s attack on Ms. Y.C.C. on 4 August 2022. They acquitted Appellant of one specification of sexual assault from that day for digitally pen- etrating Ms. Y.C.C. and of all allegations predating 4 August 2022. 25 R. at 1547. 26 R. at 1955. 27 App. Ex. CXXVI. 28 R. at 2385. 9  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court II. DISCUSSION A. The military judge did not err in denying Appellant’s three motions for a mistrial. 1. Law “The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circum- stances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” 29 The Court of Appeals for the Armed Forces (CAAF) has cautioned that “a mistrial is an unusual and disfavored remedy. It should be applied only as a last resort to protect the guarantee for a fair trial.” 30 Military judges are enjoined to use extreme caution in granting a mis- trial “for plain and obvious reasons.” 31 “Because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions.” 32 “A curative instruction is the ‘preferred’ remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused.” 33 Assessment of the probable impact of inadmissible evidence upon the court members is always difficult. Sometimes an in- struction to disregard the inadmissible evidence is sufficient as- surance that it will not be weighed against the accused; other times, the nature of the evidence is such that it is not likely to be erased from the minds of the court members. Each situation must be judged on its own facts. 34 29 Rule for Courts-Martial (R.C.M.) 915(a). 30 United States v. Short, 77 M.J. 148, 150 (C.A.A.F. 2018) (quoting United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003)). 31 R.C.M. 915(a) Discussion. 32 Short, 77 M.J. at 150 (quoting United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009)). 33 United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000). 34 United States v. Pastor, 8 M.J. 280, 284 (C.M.A. 1980) (citing United States v. Krokroskia, 13 C.M.A. 371, 373, 32 C.M.R. 373 (1962)). 10  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court “[A] mistrial is viewed as a last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.” 35 When a military judge denies a motion for mistrial, the CAAF has stated that “[a]bsent clear evidence of an abuse of discretion, this Court will not re- verse a military judge’s determination on a motion for mistrial.” 36 As we have previously stated, “[n]o bright-line test exists to determine when there is man- ifest necessity to order a mistrial in a given prosecution.” 37 Because the stand- ard for granting a mistrial is very high, we generally defer to the findings of the trial court. 38 2. Analysis We find that the military judge did not abuse his discretion in denying Ap- pellant’s three mistrial motions. Both parties compare this case to United States v. Short, where the CAAF found that the military judge did not abuse his discretion in denying three mistrial motions despite multiple sustained ob- jections under Mil. R. Evid. 404(b). 39 In Short, the CAAF held that the military judge’s issuance of curative instructions and voir dire of the members were sufficient to cure any potential prejudice caused by the inadmissible testimony in a domestic violence case. 40 Appellant claims that this case presents a more egregious instance of improper testimony and less effective judicial remedies, and we should therefore distinguish Short. While we acknowledge that the mil- itary judge held more Article 39(a) hearings and sustained more Defense ob- jections to matters under Military Rule of Evidence (Mil. R. Evid.) 404(b) than did the military judge in Short, the issue of manifest injustice cannot be de- cided based solely on a mathematical equation of how many objections were made and sustained. The question is rather whether the military judge’s instructions were inef- fective and the character of the evidence so prejudicial that we can no longer 35 United States v. Diaz, 59 M.J. 79, 90–91 (C.A.A.F. 2003) (quoting United States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000)). 36 Short, 77 M.J. at 150 (citing United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015)). 37 United States v. Cabrera, 83 M.J. 562, 571 (N-M Ct. Crim. App. 2023). 38 Diaz, 59 M.J. at 90. 39 77 M.J. at 150. 40 Id. at 150–51. 11  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court be confident that the members followed the military judge’s instructions. We find no prejudicial error for several reasons. First, the military judge showed a great willingness to hold hearings out- side of the presence of the members and sustain objections. He routinely in- structed the members to disregard both the question and the answer. Indeed, the statement by Ms. Y.C.C. that Appellant complains of the most (when she said “[Appellant]’s here, you can ask him”) drew a rebuke from the military judge in front of the members and a curative instruction without trial defense counsel even objecting. Second, after the military judge sustained an objection regarding testimony from Ms. Y.C.C. about Appellant’s behavior following the alleged domestic vi- olence from 16 December 2021, the military judge brought the members in and issued a curative instruction directing them to disregard all of Ms. Y.C.C.’s testimony about what happened following that offense. The military judge then questioned the panel as to whether they could follow his instructions, and one member asked for clarification regarding other sustained objections. The mili- tary judge reiterated his prior rulings, and the members indicated they under- stood. Although trial defense counsel was aware that the military judge was will- ing to engage in this level of curative instruction of the members and conduct this type of voir dire, he never requested the military judge undertake those steps again. Indeed, at one point, when the military judge offered the Defense the opportunity for a more fulsome curative instruction regarding Ms. Y.C.C.’s testimony that Appellant wanted to engage in a threesome with Ms. Y.C.C. and another man, trial defense counsel specifically disclaimed any further in- struction beyond telling the members to disregard the testimony. Despite the fact that Appellant never requested the military judge issue further instructions at trial (and affirmatively requested the military judge not further spotlight the offending testimony on one occasion), he now claims that it was manifest injustice for the military judge not to do so. We disagree. Ap- pellant cites no authority for his proposition that a curative instruction must be a certain length, or that the military judge must conduct voir dire of the members every time he issues a curative instruction, and we know of none. As the Court of Military Appeals specifically stated in Pastor, instructions like the ones Appellant now complains of can be sufficient to cure the error of improp- erly elicited evidence. 41 41 Pastor, 8 M.J. at 284. 12  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court This leads us to our third reason that Appellant’s argument fails. Review- ing the record of trial in its entirety, we can affirmatively state that trial coun- sel’s elicitation of objectionable testimony (and Ms. Y.C.C.’s tendency to occa- sionally insert such testimony without prompting by trial counsel) did not have an impact on Appellant’s court-martial. Here, as in Short, the members returned mixed findings in a domestic violence case in which the Government accused Appellant of a history of domestic violence spanning almost eight months. However, unlike in Short, the Government here also presented evi- dence that tended to corroborate many of Ms. Y.C.C.’s claims of historical abuse including testimony from the couple’s daughter that her mother’s slip- pers were left on the driveway after Appellant kidnapped her, 42 a knife found where Ms. Y.C.C. claimed she dropped it after Appellant threatened her with it, 43 and text messages that correspond with the dates Ms. Y.C.C.’s allegations of abuse and could be read as apologies from Appellant to Ms. Y.C.C. for strik- ing her. However, even in light of this corroborative evidence, the members acquit- ted Appellant of all but the strongest allegations—those that immediately pre- ceded her report. While Appellant challenges the legal and factual sufficiency of his conviction for sexual assault (which we find to be factually and legally sufficient in section C. infra), he makes no such challenge to the remaining domestic violence charges for the two domestic violence incidents from 4 Au- gust 2022. And we find them sufficient in light of the physical evidence includ- ing bruising, DNA evidence, and most telling, Ms. Y.C.C.’s ruptured eardrum. Appellant claims that there is evidence that the members were unable to follow the military judge’s instructions because the senior member proposed a question to Ms. Alpha inquiring whether Appellant had ever been violent with her. Appellant claims that this proposed question is evidence that the members disregarded the military judge’s instruction for the members to disregard Ms. Y.C.C.’s statement that she had previously asked Ms. Alpha if she had suffered from domestic violence. As an initial matter, we are unpersuaded that this question from the panel president was based on Ms. Y.C.C.’s claim that she asked Ms. Alpha if she had experienced domestic violence. However, even if Appellant is correct that Ms. Y.C.C.’s single reference to a question she posed to Ms. Alpha initiated this query, we disagree that this one proposed question is sufficient to overcome the general proposition that members are presumed to follow the military judge’s instructions. The ques- tion came in the midst of a 3-week trial and was an isolated incident. There is 42 R. at 2144. 43 R. at 753–54. 13  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court no evidence that the members considered this statement by Ms. Y.C.C. about her question to Ms. Alpha in reaching their verdict. These mixed findings leave us firmly convinced that the members did not judge Appellant on the basis of evidence the military judge ruled was inadmis- sible. Regarding the proposed question to Ms. Alpha, her testimony did not relate to the offenses for which Appellant was convicted. Rather, the findings show that the members held the Government to its burden and only convicted Appellant of those specifications they believed were proved beyond a reasona- ble doubt and only of those offenses for which there was direct corroborating evidence and an immediate report. This included finding Appellant guilty of only domestic violence – assault consummated by a battery when there was direct evidence of bruising near Ms. Y.C.C.’s neck but no documented evidence of petechiae or lowered blood oxygen level as the Defense argued would be pre- sent for a charge of strangulation. We therefore find, as did the CAAF in Short, “. . . the mixed findings, including several acquittals and convictions based on lesser included offenses, indicate the court members were capable of and did put aside the inadmissible evidence . . .” 44 B. Trial counsel’s actions did not amount to prosecutorial misconduct requiring reversal of Appellant’s convictions. 1. Law “Where proper objection is entered at trial, this Court reviews alleged pros- ecutorial misconduct for prejudicial error.” 45 “Prosecutorial misconduct occurs when trial counsel ‘overstep[s] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a crim- inal offense.’ ” 46 Just because a prosecutor commits errors or misconduct does not mean that a conviction must be overturned. Instead, courts must look to the cumulative impact of the misconduct on the rights of the accused. 47 A pros- ecutor can commit prosecutorial misconduct by repeatedly eliciting inadmissi- ble evidence at trial. 48 44 Short, 77 M.J. at 151. 45 United States v. Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014 ) (citing United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)). 46 Id. (quoting Berger v. United States, 295 U.S. 78, 84 (1935)). 47 Fletcher, 62 M.J. at 184. 48 Hornback, 75 M.J. at 160 (“repeated violations of rules of evidence can consti- tute prosecutorial misconduct.”) 14  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court In conducting our prejudice inquiry, we consider three factors: “(1) the se- verity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” 49 The CAAF has stated that in some instances, “the third factor may so clearly favor the gov- ernment that the appellant cannot demonstrate prejudice.” 50 “The prosecuto- rial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor.” 51 2. Analysis Appellant claims that Capt Tango committed prosecutorial misconduct in several ways. 52 First, he repeatedly elicited objectionable testimony in front of the members, including evidence that the military judge ruled was inadmissi- ble. Second, he was dilatory in his discovery responsibilities by providing notice of new text messages throughout the trial. Finally, Appellant claims that Capt Tango withheld evidence by failing to inform the Defense that Ms. Y.C.C. did not want Appellant to be charged with rape and used that charge against Ap- pellant in the plea negotiation process. We begin by noting, as the military judge did, that the Government’s pro- cessing of Appellant’s case certainly could have benefitted from better prepa- ration by trial counsel. 53 However, we see several reasons that the severity of trial counsel’s conduct in this case was at least partially mitigated, and, as we will discuss below, we ultimately find that Appellant suffered no prejudice from Capt Tango’s acts. With respect to trial counsel’s elicitation of testimony that was ultimately ruled inadmissible by the military judge, we first note that none of the parties benefitted from a thorough discussion of myriad pitfalls associated with using Mil. R. Evid. 404(b) in cases of alleged historic and prolonged domestic vio- lence. Here, trial counsel provided trial defense counsel with notice of the 49 Id. (quoting Fletcher, 62 M.J. at 184). 50 United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citing United States v. Halpin, 71 M.J. 477, 481 (C.A.A.F. 2013)). 51 Hornback, 75 M.J. at 160. 52 We decline to address further Appellant’s claim that Capt Tango was untruthful to the trial court when he asked to be excused from the court-martial due to a migraine headache and subsequently filed a bench brief with the trial court the following day. We will not question the integrity of trial counsel on the basis of a claim raised by Appellant at trial, rejected by the military judge, and re-asserted on appeal without any further proof of Capt Tango’s alleged lack of candor. 53 R. at 1092. 15  United States v. RodriguezDejesus, NMCCA No. 202300262 Opinion of the Court 404(b) matters the Government intended to introduce at trial, and the Defense filed a motion in opposition. 54 However, the litigation on the matter was rela- tively brief, and the military judge did not issue a written ruling on the issue. Most importantly, the members’ verdict acquitting Appellant of all historical abuse detracts from Appellant’s argument that the members were improperly influenced by the precluded testimony. So even if trial counsel’s actions were improper and intended to improperly sway the members, they were ineffective. Second, we also note that the Government’s discovery practices were not as efficient as could be desired, particularly with respect to the discovery of the forensic copy of the data on Appellant’s phone. We recognize that the pro- cessing of the case was necessarily impacted by the fact that Appellant was placed into pretrial confinement and repeatedly declined to request a continu- ance. As a result, the Government was forced to perfect its investigation and prepare for trial quicker than it may have liked. While these realities may ex- plain a delayed discovery process, they do not excuse it. The military judge, however, found that the Government had met its notice obligations regarding the text messages, and ultimately permitted the Govern- ment to admit some, but not all, of the text messages in its case in chief, and we do not find his decision to be an abuse of discretion. Also, while Appellant now claims that trial counsel conducted a trial by ambush, 55 we are not con- vinced that Appellant was ambushed, or if he was, that he was prejudiced. First, in Appellant’s second motion for a mistrial, Appellant stated, It would seem that Trial Counsel is operating under the assump- tion that Defense has not yet translated and read the same 14,000 messages. Trial Counsel would be wrong. The first thing the Defense did when it received the . . . extraction was request its [Digital Forensic Examiner] to format the messages in a spreadsheet, which it then went through great pains to trans- late. . . 56 We therefore reject Appellant’s claim that trial counsel ambushed him with late discovery given that Appellant’s position at trial was that he knew bett