              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    JONATHAN D. REDMON
      INFORMATION SYSTEMS TECHNICIAN SECOND CLASS (E-5),
                          U.S. NAVY

                           NMCCA 201300077
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 22 October 2012.
Military Judge: CAPT T.M. Carlos, JAGC, USN.
Convening Authority: Commander, Navy Region Europe, Africa,
Southwest Asia, Naples, Italy.
Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC,
USN.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Maj David N.
Roberts, USMC.

                              26 June 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MITCHELL, Chief Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of aggravated sexual assault and adultery in violation of
Articles 120 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 920 and 934. The appellant was sentenced to 60 days
confinement, reduction to pay grade E-1, forfeiture of all pay

                 Corrected Opinion Issued 16 July 2014
and allowances, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged, and except for
the dishonorable discharge, ordered it executed.

     In his five assignments of error, the appellant avers: (1)
that the military judge abused his discretion by denying the
defense motion to dismiss for selective prosecution; (2) that
the application of Article 120(c), UCMJ, in this case violated
his right to equal protection under the law; (3) that the
element of substantial incapacitation is unconstitutionally
vague as applied in the appellant’s case; (4) that the evidence
presented at trial was neither factually nor legally sufficient
to support the conviction for a violation of Article 120(c),
UCMJ; and, (5) that the military judge abused his discretion
when he denied defense’s motion to dismiss for unlawful command
influence.

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                Background

     On 20 January 2012, Information Systems Technician Third
Class (IT3) S1 attended a farewell party for the appellant hosted
by Information Systems Technician Second Class (IT2) MH.
Earlier that evening, IT3 S went to dinner with a few friends
during which she consumed multiple glasses of wine. She then
went back to her apartment where she consumed another alcoholic
drink and shortly thereafter walked to the party with a
shipmate, Information Systems Technician Seaman (ITSN) SC. At
the party, IT3 S continued drinking alcoholic beverages to
include several beers, strong mixed drinks, “swigs” of Wild
Turkey Bourbon Whiskey, and a significant quantity of a drink
called FUBAR juice, which was described as a very intoxicating
mix of alcohol. Record at 1226. The appellant was also
drinking that night and consumed much of the same type of
alcohol IT3 S did at the party. Although the appellant was
married, his wife and children had already left Italy for the
United States and their next duty station.



1
  At the time of the sexual assault, the victim was an IT3 - she has since
been promoted to IT2. For purposes of this opinion, we refer to her as IT3,
the pay grade she held at the time of the sexual assault.
                                     2
     The party ended somewhere around 0300 and IT3 S was
intoxicated to the extent that she had difficulty walking. The
appellant and others helped IT3 S back to her apartment, a 10-
minute walk away. Once in her apartment, IT3 S undressed and
sat on the floor of the shower with the water running over her
for approximately 45 minutes. After ITSN SC experienced
difficulty extracting IT3 S from the shower, the appellant
assisted him in retrieving her from the shower and helping dress
her. During the course of dressing her, IT3 S began to vomit in
the toilet. After the appellant and ITSN SC managed to clothe
IT3 S in sweatpants and a top they laid her down on a futon in
the living room to go to sleep. The appellant later lay down
next to her.

     IT2 KA, who shared the apartment with IT3 S, stayed in the
apartment that night with her boyfriend, IT3 LC, but left that
morning at 0530 as she had to be at work by 0600. IT3 LC
testified that before they left, he looked in on the appellant
and IT3 S. He indicated that they were clothed and positioned
on the futon as if they were “spooning,” but he otherwise didn’t
see anything that gave him pause for concern as they both
appeared to be asleep.

     IT3 S indicated that after she fell asleep, the next thing
she remembers is waking up, naked from the waist down, and the
appellant on top of her, penetrating her vagina with his penis.
IT3 S began to cry, pushed appellant aside, put on a pair of
sweatpants, and went to sleep in her bed. Shortly thereafter,
the appellant left and caught a ride with a friend, IT2 B, back
to the appellant’s barracks room. While in the appellant’s
barracks room, IT2 B noticed what appeared to be semen on the
appellant’s boxers when he changed clothes. Additional
pertinent facts are provided as necessary to discuss the
appellant’s assignments of error.

     Selective Prosecution and a Violation of Equal Rights

     On 21 January 2012, hours after the incident, IT3 S made an
unrestricted report of sexual assault at the U.S. Naval
Hospital, Naples, Italy and underwent a sexual assault forensic
exam (SAFE). On 25 January 2012, the appellant was informed
that he was suspected of violating Article 120, UCMJ, and
apprised of his rights pursuant to Article 31(b), UCMJ, by the
Naval Criminal Investigative Service (NCIS) Special Agent
investigating the sexual assault allegation. On 10 February
2012, the appellant, via memorandum, advised his commanding
officer that he wished to exercise his rights under Article

                                3
31(b), as explained to him by the NCIS investigating agent, and
that he felt that he was the victim of sexual assault in this
case. Appellate Exhibit XV, enclosure (6). IT3 S was not
charged with sexual assault notwithstanding the appellant’s
allegation.

     At trial, the defense moved to dismiss the charges against
the appellant alleging that the CA engaged in selective
prosecution. He argued that even though the evidence
demonstrated that the appellant and IT3 S had approximately the
same level of intoxication and that neither of them remembered
the sexual encounter, it was the appellant who was the victim of
sexual assault in this case and yet the CA was unwilling to
prosecute IT3 S because she was female. This motion was denied
by the military judge. Record at 75.

      In his initial assignment of error, the appellant contends
that the military judge erred by not dismissing the charges
against him due to the CA engaging in selective prosecution.
Closely related, in his second assignment of error the appellant
contends the CA’s decision to prosecute him and not IT3 S
violated his right to equal protection under the Due Process
Clause of the Fifth Amendment to the Constitution. We disagree
with both contentions.

The Law

     CAs have broad discretion in determining whom to prosecute
United States v. Brown, 40 M.J. 625, 629 (N.M.C.M.R. 1994);
United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994).
Unless presented with evidence to the contrary, we presume that
CAs act without bias. The appellant has the burden of rebutting
this presumption. To raise the issue of selective or
discriminatory prosecution, an appellant bears the heavy burden
of establishing, at least prima facie: (1) that, while others
similarly situated have not generally been proceeded against
because of conduct of the type forming the basis of the charge
against him, he has been singled out for prosecution, and (2)
that the Government's discriminatory selection of him for
prosecution has been invidious or in bad faith, i.e., based upon
such impermissible considerations as race, religion, or the
desire to prevent his exercise of constitutional rights. United
States v. Garwood, 20 M.J. 148, 154 (C.M.A. 1985). An appellant
must show more than a mere possibility of selective prosecution;
he must show discriminatory intent. United States v. Brown, 41
M.J. 504, 511 (Army Ct.Crim.App. 1994). In reviewing rulings by
a military judge on a motion to dismiss for selective

                                4
prosecution, we review the findings of fact under a “clearly
erroneous” standard, while we review the conclusions of law de
novo. See United States v. Johnson, 54 M.J. 32, 34 (C.A.A.F.
2000).

Discussion

     In denying the defense’s motion to dismiss for selective
prosecution, the military judge found as a matter of law that
the appellant failed to establish a prima facie showing
utilizing the Garwood test. We agree.

     The evidence adduced from the NCIS investigation and
provided to the CA indicated that when the party ended, the
appellant had to assist IT3 S in getting home by carrying her
part of the way. After they arrived at her apartment, the
appellant assisted in getting her out of the shower and watched
her vomit in the toilet. The appellant then assisted in getting
her clothed and laid down next to her after he helped put her to
bed. Prior to lying down with IT3 S, the appellant made
comments to others like “I am fine” and that IT3 S was “like
[his] little sister,” suggesting that IT3 S would be safe with
him. IT3 S awoke up to find the appellant on top of her
penetrating her vagina with his penis. Mere hours after the
sexual assault, IT3 S reported it to the U.S. Naval Hospital,
Naples. It was weeks later, and only after being informed by
NCIS that he was suspected of sexual assault, that the appellant
claimed that he was the victim in this case.

     We do not find that the appellant and IT3 S are “similarly
situated” and that the appellant has been “singled out” for
prosecution in this case. We additionally do not find evidence
of bad faith on the part of the CA in bringing the appellant to
trial. The information provided to the CA, to include the
Article 32 Investigating Officer’s report, the NCIS
Investigative Report, and the staff judge advocate’s Article 34
Advice memorandum, quite to the contrary, all suggest that the
appellant was not the victim but rather the perpetrator of this
sexual assault, and that the appropriate forum in which to
dispose of the appellant’s charges was at a general court-
martial. We find this assignment of error to be without merit
and therefore decline to grant relief.

     We similarly find the appellant’s second assignment of
error alleging a Fifth Amendment violation to be without merit
and not worthy of further comment.


                                5
          Constitutional Challenge to Article 120 as Applied

     In his third assignment of error, the appellant contends
that the element of “substantial incapacitation” is
unconstitutionally vague as applied to the appellant. The
appellant specifically avers that Article 120 (c), UCMJ, is
unconstitutionally vague because “[t]he law cannot be understood
by the common man or those who prosecute it” and it is unclear
“what factors satisfy the element of substantial incapacitation”
in this case. Appellant’s Brief of 22 Jul 2013 at 20.

The Law

     A basic principle of due process requires “fair notice”
that an act is subject to criminal sanction and the standard
that is applicable to the forbidden conduct. United States v.
Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003). A law is “void for
vagueness” if “‘one could not reasonably understand that his
contemplated conduct is proscribed.’” Id. (quoting Parker v.
Levy, 417 U.S. 733, 757 (1974)). The sufficiency of statutory
notice is determined in the light of the conduct with which a
defendant is charged. Levy, 417 U.S. at 757. “Criminal
statutes are presumed constitutionally valid, and the party
attacking the constitutionality of a statute has the burden of
proving otherwise.” United States v. Mansfield, 33 M.J. 972,
989 (A.F.C.M.R. 1991) (citation omitted), aff'd, 38 M.J. 415
(C.M.A. 1993).

Standard of Review

     We review whether a statute is unconstitutional as applied
de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F.
2012). However, at trial, the appellant did not object to the
constitutionality of Article 120(c), UCMJ, as applied to his
case. Since the error the appellant is alleging is
constitutional, and in light of the Court of Appeals for the
Armed Forces presumption against waiver of constitutional rights
and the requirement that waiver “‘clearly establish[] . . . an
intentional relinquishment of a known right or privilege,’” we
consider the alleged error forfeited and not waived. United
States v. Sweeney, 70 M.J. 296, 303-04 (C.A.A.F. 2011) (quoting
United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008). We
therefore test for plain error. Id. at 304.

     Under plain error review, we will grant relief only where:
(1) there was error, (2) the error was plain and obvious, and
(3) the error materially prejudiced a substantial right of the

                                  6
appellant. Id. To determine if “a statute is ‘unconstitutional
as applied,’ we conduct a fact-specific inquiry.” Id. (footnote
and citations omitted).

Analysis and Discussion

     The appellant was charged with violating Article 120(c),
UCMJ, specifically alleging that he had sexual intercourse with
IT3 S, who was substantially incapacitated. Aggravated sexual
assault, under Article 120(c)(2), is committed when a person
“engages in a sexual act with another person of any age if that
other person is substantially incapacitated or substantially
incapable of: (A) appraising the nature of the sexual act; (B)
declining participation in the sexual act; or (C) communicating
unwillingness to engage in the sexual act . . . .”

     After consultation with its expert, the defense was
informed that, based upon the amount and types of alcohol IT3 S
and other witnesses indicated that she consumed, the expert was
of the opinion that IT3 S was in a “blacked out” vice “passed
out” stage of intoxication at the time of the sex act. While
the defense expert could definitively state that a person in a
“passed out” stage of intoxication would be “substantially
incapacitated” and not capable of consent, she could not so
definitively state such when the person was in a “blacked out”
stage. After receiving this information, the defense served the
Government with a motion for appropriate relief in the form of a
bill of particulars requesting the Government to define what the
term “substantially incapacitated” meant in regards to the
appellant’s charged misconduct. AE XXXV. After the Government
counsel denied this request, the defense filed the same motion
with the court and it was ultimately denied by the military
judge. Record at 322. The appellant now contends that he was
denied due process of law as guaranteed by the Fifth Amendment
because he was not given fair notice that his misconduct was
forbidden due to the vagueness of the statute. We disagree.

     At an Article 39(a), UCMJ, session to hear the defense’s
motion for appropriate relief, the defense indicated that the
defense team was in possession of the military judge’s proposed
member’s instructions that included the definition of
substantial incapacitation. The military judge stated:

    I mean you have the definition of substantially
    incapacitated, right, that I’ve given out and it’s
    been a standard of my instructions on for every single
    one of the substantially incapacitated case (sic) . .

                                7
    . . It’s a level of mental impairment due to the
    consumption of alcohol while asleep or unconscious
    which rendered the alleged victim unable to appraise
    the nature of the sexual conduct at issue, unable to
    physically communicate unwillingness to engage in the
    sexual conduct or otherwise unable to make or
    communicate a competent decision.

Id. at 321-22.

     That definition was contained in the Judge’s Benchbook
prior to his trial and the military judge advised the defense he
intended to give that instruction to the members. After this
disclosure by the military judge, the defense did not state that
it was surprised or unprepared to defend against this
possibility, nor did the defense team request additional time to
prepare. The appellant clearly knew and understood the legal
theory on which he was prosecuted: that he had committed a sex
act (sexual intercourse) upon IT3 S and that he did so while she
was substantially incapacitated — while she was asleep or
unconscious.

     Under these circumstances, the appellant's due process
rights were not violated because he was on notice of what he
needed to defend against throughout his court-martial. United
States v. Wilkins, 71 M.J. 410, 414 (C.A.A.F. 2012).
Accordingly, we find no error by the trial court and conclude
that this assignment of error is without merit.

                  Legal and Factual Sufficiency

     In his fourth assignment of error, the appellant avers that
the finding of guilty on the charge of sexual assault is legally
and factually insufficient. We disagree.

The Law

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559, 561-62
(N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F. 2000); see
also Art. 66(c), UCMJ. The test for factual sufficiency is
whether, after weighing all the evidence in the record of trial
and recognizing that we did not see or hear the witnesses, this

                                8
court is convinced of the appellant's guilt beyond a reasonable
doubt. Turner, 25 M.J. at 325; see also Art. 66(c).

Analysis

     There are two elements to the offense of aggravated sexual
assault that the Government was required to prove beyond a
reasonable doubt: (1) that the accused engaged in a sexual act
with the IT3 S; and (2) that IT3 S was substantially
incapacitated. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Appendix 28, ¶ 45b(3)(c).

     There is little dispute, if any, as to whether the
appellant engaged in a sex act with IT3 S. IT3 S testified that
after she went to sleep, she was awakened by the appellant on
top of her with his penis inside of her vagina. The SAFE
revealed the presence of semen in IT3 S’s vagina which matched
the deoxyribonucleic acid (DNA) of the appellant. While the
appellant claims he does not remember the event, he stated
during an NCIS recorded phone call with IT3 S that a sexual act
must have occurred as both of them were naked from the waist
down. The only element in issue is whether IT3 S was
substantially incapacitated.

     In presenting its case in chief, the Government called
multiple witnesses who described the different types and
quantities of alcoholic beverages they saw IT3 S consume as well
as the fact that, as a result of her heavy drinking, her speech
was slurred; she was having difficulty walking; and she was
incoherent and vomiting. The Government also called Colonel
(COL) Timothy Lyons, U.S. Army, Chief of Forensic Toxicology
Division, Armed Forces Medical Examiner, who the military judge
recognized as an expert in the field of forensic toxicology.
After listening to the witnesses and based on the amount and
types of alcohol they said IT3 S consumed, COL Lyons stated that
he would have put her blood alcohol content (BAC) between .19
and .22. Record at 854. When questioned as to the
incapacitation of IT3 S, the following colloquy occurred between
the trial counsel and the Government’s forensic expert:

     TC: Am I correct in saying that when it comes to
     actually establishing whether someone was, as we would
     say in the legal world, substantially incapacitated,
     you can’t categorically say that for any particular
     case?
     A: It’s not a toxicology question. That’s a legal
     question.

                                  9
    TC: Precisely, sir, but what is it that you can do in
    cases like this?
    A: And I hinted to it – I mean ---let me clarify that.
    If an individual has a BAC that I think would put them
    in a range where they’re unconscious or were
    unresponsive, then I would be safe in saying “I don’t
    think that individual had the capacity to consent.”
    Okay? That I am willing to do. However, in a case
    like this where the BAC is lower than that, all I can
    state scientifically, is that the BAC that I estimated
    is consistent with the witness statements that I heard
    in court yesterday as far as her condition mentally
    and physically and that my BAC is the manifestations
    or the symptoms that I would associate with the BAC I
    estimated are in line or consistent with the
    statements that I heard and that this individual that
    I would expect to be impaired and incapacitated and
    have trouble, you know, with memory definitely,
    potentially incoherent, potentially confused of her
    surroundings and that’s basically what I gleaned from
    the statements that I heard yesterday. So that’s what
    I am willing to say.

Id. at 869-70.

     Additionally, the objective evidence adduced at trial also
shows that IT3 S was significantly more affected by alcohol that
night than the appellant and that semen matching the DNA of the
appellant was found in IT3 S’s vagina. As appellant indicated
that he called a friend and left IT3 S’s apartment at
approximately 0600 or 0615, the sexual assault therefore
occurred shortly after IT3 LC and IT2 KA left the appellant
alone in the apartment with IT3 S.

     Given these facts that were before the members, we have
little difficulty finding that the members had a factual basis
to find the appellant guilty beyond a reasonable doubt. On
balance, and with due regard for the fact that we did not
observe the witnesses, we too are convinced of the appellant's
guilt beyond a reasonable doubt. We find this assignment of
error to be without merit.

                   Unlawful Command Influence

     In his final assignment of error, the appellant contends
that the military judge erred in denying the defense’s motion to
dismiss the case due to unlawful command influence.

                               10
The Law

     “Congress and this court are concerned not only with
eliminating actual unlawful command influence, but also with
‘eliminating even the appearance of unlawful command influence
at courts-martial.’” United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)). An accused has the initial burden of
raising the issue of unlawful command influence. United States
v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). The defense must
“show facts that, if true, constitute unlawful command
influence, and that the alleged unlawful command influence has a
logical connection to the court-martial, in terms of its
potential to cause unfairness in the proceedings.” United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citations
omitted). The quantum of evidence necessary to raise the
specter of unlawful command influence is “‘some evidence.’”
Biagase, 50 M.J. at 150 (quoting United States v. Ayala, 43 M.J.
296, 300 (C.A.A.F. 1995)). The burden of disproving the
existence of unlawful command influence or proving that it will
not affect the proceeding does not shift until the defense meets
its burden of production.

Analysis and Discussion

     Allegations of unlawful command influence are reviewed de
novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006);
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999);
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). We
necessarily begin our analysis by determining whether the
defense met its initial burden of providing “some evidence”
necessary to make a colorable showing of unlawful command
influence.

     In the appellant’s case, the charges were preferred on 10
April 2012; the defense received the request for counsel and the
charge sheet at 1711 hours that same day. The appellant’s
defense counsel were detailed on 11 April with the Article 32
hearing scheduled for 19 April 2012. The defense requested a
continuance and the Article 32 was rescheduled for 30 April
2012. The appellant filed a timely motion with the trial court
arguing that his commanding officer exerted unlawful command
influence over the judicial process by so quickly convening an
Article 32 Investigation thus creating the appearance of
unlawful command influence. See AE XIX. After considering the
motion, the military judge concluded that the defense had
presented insufficient evidence of unlawful command influence to

                               11
warrant shifting the burden of proof to the Government on the
issue and, alternatively, he was convinced beyond a reasonable
doubt that the charges against the appellant were free from
actual or apparent unlawful command influence. AE XXII.

     We too conclude that the appellant has failed to meet its
initial burden to provide “some evidence” of facts which, if
true, constitute unlawful command influence. His claims
regarding the special court-martial CA’s quest to have the
Article 32 completed in an expeditious manner does not give rise
to unlawful command influence. Mere speculation that unlawful
command influence occurred because of a specific set of
circumstances is not sufficient. United States v. Ashby, 68
M.J. 108, 128 (C.A.A.F. 2009). The appellant has failed to show
that his commanding officer’s interest in conducting the Article
32 in an expeditious manner was anything other than proper,
official, and command prerogative.

                           Conclusion

     The findings and the sentence are affirmed as approved by
the CA.

    Judge FISCHER and Judge JAMISON concur.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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