Here is a link to United States v. Stewart, NMCCA 201000021, slip op. (N-M. Ct. Crim. App. Jan. 31, 2011).   It’s not published but the hearing conducted by the military judge on Art. 120 was interesting.  The panel finds an error in the Art. 120 burden of proof harmless beyond a reasonable doubt after the judge conducted a “novel’ Art. 120 hearing and found that the accused had presented sufficient evidence to raise the defense of consent and shifted the burden back to the government.  Slip op. at 7-8.  A few other errors are addressed, and Judge Booker dissents on the factually sufficiency finding but finds it would not have changed the sentence.

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