             U NITED S TATES N AVY –M ARINE C ORPS
                   C OURT     OF   C RIMINAL A PPEALS
                            _________________________
                                 No. 201500249
                            _________________________
                     UNITED STATES OF AMERICA
                                     Appellee
                                        v.
                              ALFREDO SOLIS
                   Staff Sergeant (E-6), U.S. Marine Corps
                                    Appellant
                            _________________________
    Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Lieutenant Colonel L.J. Francis, USMC.
            For Appellant: Major Benjamin A. Robles, USMC.
     For Appellee: Lieutenant Commander Robert Miller , JAGC, USN;
                   Captain Matthew M. Harris, USMC.
                         _________________________
                            Decided 11 August 2016
                            _________________________
    Before PALMER, MARKS, and FULTON, Appellate Military Judges
                            _________________________

                   PUBLISHED OPINION OF THE COURT
                         _________________________
   FULTON, Judge:
    A panel of members with enlisted representation sitting as a general court-
martial convicted the appellant, contrary to his pleas, of one specification each of
violating a lawful general order and sexual assault, in violation of Articles 92 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920. The members
sentenced the appellant to 24 months’ confinement, reduction to pay grade E-1, and
a bad-conduct discharge. The convening authority approved the sentence as
adjudged.
   The appellant raises the following assignments of error (AOE):1
   I. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the
   language “incapable of consenting to the sexual act because she was
   impaired by . . . alcohol” is unconstitutionally vague.
   II. The evidence is factually and legally insufficient to sustain the
   appellant’s conviction for sexual assault.
   III. It was plain error when the military judge admitted evidence of the
   victim’s prior, unrelated molestation without instructing the members on
   its permissible use.
   IV. The military judge abused his discretion when he allowed messages
   from the victim’s Facebook account into evidence without the proper
   foundation.
   V. Certain command, investigative, and prosecutor actions including
   altering evidence against the appellant amounted to prosecutorial
   misconduct.
   VI. Members’ responses at voir dire and existing working relationships
   with the trial counsel amounted to actual or implied bias.
   We find no error and affirm.
                                  I. BACKGROUND
    The appellant was a staff sergeant in the Marine Corps assigned to recruiting
duty in Southern California. In June 2012, the appellant was the primary recruiter
for LH, a female high school student. The two met about once a week. During a
recruiting function, LH told the appellant that she had always been “somewhat
poor,” and that financial considerations were one of the main reasons she was
joining the Marine Corps. The appellant told her that he might have an odd job
related to sales that could help meet her expenses during her last year of high
school. In late November 2012, LH enlisted, becoming a “poolee” in the Delayed
Entry Program (DEP).
   After becoming a poolee, LH had little contact with the appellant until February
2013. On 24 February 2013, the appellant sent LH a Facebook message telling her
she could earn $200.00 in one weekend by selling wrestling gear with him at a
wrestling tournament in Fresno, California. LH agreed to the offer.
    On the morning of 8 March 2013, the appellant, wearing civilian clothes and
driving his personal vehicle, picked up LH at her house. The two drove to a parking
lot where they were joined by a civilian friend of the appellant and several wrestlers


   1Appellant’s Brief of 29 Jan 2016 at 1-2. The appellant raises AOEs V and VI
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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who were participating in the tournament. The appellant, his friend, LH, and the
wrestlers traveled in the friend’s SUV to a hotel in Fresno California, about three-
and-one-half hours away from LH’s home. The group checked into the hotel. The
appellant’s friend paid for three rooms—one for himself, one for the wrestlers, and
one for the appellant and LH. After checking in, the appellant, his friend, and LH
ate dinner at Hooters. The appellant drank at least one beer, and LH drank soda.
    After dinner, the appellant and LH went to a nearby convenience store where the
appellant purchased a bottle of Jägermeister alcohol, two cans of Red Bull energy
drink, and plastic cups. Back in the hotel room, the appellant put the Jägermeister
on ice and left the room. While the appellant was gone, LH smoked “medical grade”
marijuana. Upon returning to the room, the appellant realized LH had been
smoking marijuana, but took no action. Instead, he taught LH how to play a
drinking game using Jägermeister and Red Bull. LH drank approximately nine
small cups and three larger “penalty cups” of Jägermeister and Red Bull while
playing the game. LH, who had never combined alcohol and marijuana before,
became dizzy and felt like her body “was slowly going under an anesthetic.”2 She
grabbed a coffee table, turned around, and managed to take two or three steps to a
couch. LH “plopped” onto the couch, “just kind of laying down and kind of sitting up
at the same time.”3 LH’s last memory before she was assaulted was leaning on the
couch’s armrest, staring at the turned-off television, and trying to stay awake.
    LH’s next memory was slowly waking face-up on the bed and looking at the
ceiling with “tunnel vision.”4 LH slowly returned to her senses and realized that her
pants and underwear were off and the appellant was on top of her having sexual
intercourse with her. LH was unable to push him off and started cursing at him. The
appellant responded by saying “just let me finish.”5 After LH continued to curse at
and push the appellant, he got off of her and walked toward the bathroom. LH fell
asleep again and woke up in the morning under a sheet, still naked from the waist
down.
   LH, who had no cell phone, credit card, or bank account of her own, and whose
mother did not own a car, spent the rest of the weekend with the appellant in
Fresno, helping him sell wrestling gear at the tournament. She did not report that
she had been sexually assaulted. About a week after the tournament, the appellant
paid LH $200.00 in cash for her work.
   In May or June 2013, LH and her boyfriend were talking about the future of
their relationship and contemplating becoming engaged. During the discussion, LH


   2   Record at 392.
   3   Id. at 393.
   4   Id. at 394.
   5   Id. at 395.

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disclosed that the appellant had sexually assaulted her in Fresno. LH told two other
friends about the assault over the course of the summer and, with their
encouragement, decided to tell the Marine Corps about the assault.
    In early July 2013, as LH’s boot camp departure date approached, LH returned
to the recruiting station and underwent the “moment of truth,” during which
recruiters encourage poolees to disclose any latent problems with their enlistments,
such as recent drug use. When a recruiter told LH that her hair would be tested for
drugs at boot camp, LH became worried her marijuana use as a poolee would be
discovered. So she revealed some of her more recent marijuana use to the recruiters,
believing that it would be better for her to disclose it then, even though she might
require an additional waiver. Although her recruiters requested another waiver for
marijuana use, the waiver was denied and LH was discharged from the DEP.
    In August 2013, after her discharge, LH returned to the recruiting station and
told a recruiter that the appellant sexually assaulted her in Fresno.
     During direct examination, trial counsel asked LH if she could explain why she
did not tell anyone about the assault the day after it happened. LH answered that
she was sexually molested as a young child—a fact not previously shared with trial
counsel, defense counsel, or law enforcement. The military judge then held a closed
session under MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). LH testified that when she was between four and six
years old, a man who shared her house touched her genitals and forced her to touch
his genitals on more than ten occasions. LH said the man partially penetrated her
vulva with his fingers but did not remove her pants.
     The military judge permitted trial counsel to elicit this testimony from LH in
front of members. LH explained that she never told her mother about the prior
abuse because she did not want to burden her. The military judge also permitted the
civilian defense counsel to cross-examine LH extensively about the prior abuse,
whether it resulted in any kind of treatment or diagnosis, and the degree to which
memories of it intruded on her thoughts at the time of the charged assault.
                                   II. DISCUSSION
A. Vagueness of Article 120(b)(3), UCMJ
   The appellant asserts that Article 120(b)(3), UCMJ, is unconstitutionally vague
both on its face and as applied to him. We review the constitutionality of a statute de
novo. United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005).
    A statute may be unconstitutionally vague for either of two reasons: first, if it
fails to give a person of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits; second, if it authorizes or encourages arbitrary or
discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000). We hold that
Article 120(b)(3) is not unconstitutionally vague on its face or as applied to the
appellant’s case.

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   1. Facial challenge
   The appellant argues that Article 120(b)(3) is unconstitutional on its face
because there is no way for a person of common intelligence to determine when
another person is impaired by alcohol such that they are incapable of consenting to a
sexual act.
   The statutory text at issue is as follows:

   Article 120—Rape and sexual assault generally

   ....

   (b) Sexual Assault. Any person subject to this chapter who—

   ....

   (3) commits a sexual act upon another person when the other person is
   incapable of consenting to the sexual act due to—

     (A) impairment by any drug, intoxicant, or other similar substance,
   and that condition is known or reasonably should be known by the person
      ...

         (B) . . . is guilty of sexual assault . . . .

    The appellant argues that the statute does not “draw the line” that would
determine whether a person’s degree of impairment renders that person no longer
capable of consenting to sexual conduct.6 But by focusing narrowly on the term
impaired, the appellant fails to appreciate that the statute does not proscribe sexual
acts with impaired people, but rather with people incapable of consenting to the
conduct at issue because of their impairment—and even then, only when the
inability to consent is known, or reasonably should be known, to an accused.
    The word incapable is not defined by the statute. But a person of ordinary
intelligence would understand by the term’s plain meaning that sexual conduct with
a person who lacks the ability to consent is proscribed. See United States v. Pease, 74
M.J. 763, 770 (N-M. Ct. Crim. App. 2015), aff’d 75 M.J. 180 (C.A.A.F. 2016)
(defining “incapable of consenting” as “lack[ing] the cognitive ability to appreciate
the sexual conduct in question or the physical or mental ability to make [or] to
communicate a decision about whether they agreed to the conduct”). The statute
defines consent as “a freely given agreement to the conduct at issue by a competent
person.” Art. 120(g)(8)(A), UCMJ. Additionally, the fact that Article 120(b)(3)(A)
requires that an accused know or should reasonably know that another person is


   6   Appellant’s Brief at 7.

                                                  5
incapable of consenting makes the statute even more definite. See Hoffman Estates
v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (“[A] scienter requirement
may mitigate a law’s vagueness, especially with respect to the adequacy of notice to
the complainant that his conduct is proscribed.”). We find that Article 120(b)(3)
provides a person of reasonable intelligence fair notice of what conduct it proscribes.
   Similarly, the statute is not so standardless that it invites arbitrary enforcement.
Cf. Kolender v. Lawson, 461 U.S. 352, 357-61 (1983) (finding statute which
authorized arrest of individuals who did not provide “credible and reliable”
identification to a police officer to be unconstitutionally vague, because it “fail[ed] to
establish standards by which the officers may determine whether the suspect has
complied with the . . . identification requirement”). Article 120(b)(3) does not require
a person to arbitrarily determine how impaired another person must be before they
are too impaired. Rather, it requires a person to determine if a sexual partner is
capable of consenting. Again, the scienter requirement serves to narrow the sweep of
the statute and to guide both prosecutors and fact finders. A successful prosecution
does not depend on a trial counsel’s or panel’s subjective sense of how impaired is too
impaired. Rather it depends on proving that an accused knew, or reasonably should
have known, that the other person was incapable of consenting. This is a clear
standard that provides reasonable guidance to prosecutors and fact finders, and does
not invite arbitrary or discriminatory enforcement.
   Because Article 120(b)(3)(A) provides a person of ordinary intelligence fair notice
of what conduct is proscribed and does not invite arbitrary or discriminatory
enforcement, we hold that it is not facially unconstitutionally vague.
   2. As applied challenge
    In addition to arguing that Article 120(b)(3) is facially vague, the appellant
argues that the statute is vague as applied to him because he could not have
discerned that his conduct with LH was criminal. He argues that the record contains
no direct evidence that LH passed out, was unconscious, or was otherwise
unresponsive. He further argues that LH’s testimony is consistent with her having
experienced a fragmentary blackout. Even if LH had been so intoxicated that she
was unable to remember at least some of what happened, she may have still been
capable of consenting to sexual conduct. The appellant then argues that if LH had
been in a blackout instead of asleep or unconscious, “there is no way for a person of
common intelligence to determine when an intoxicated person’s ability to consent is
sufficiently ‘impaired’ that sexual conduct becomes a crime.”7 We disagree with this
view of the statute as applied to the appellant’s case.




   7   Id. at 10.

                                            6
    The appellant again misconstrues the statute by suggesting that it calls on a
person to make an arbitrary judgment about another person’s degree of impairment.
It does not. Article 120(b)(3) proscribes sexual acts with people who are incapable of
consenting to them.
    With this view of Article 120(b)(3) in mind, we find that the statute properly
informed the appellant that his conduct was proscribed. LH, an inexperienced
drinker who had already used marijuana, vividly described how the alcohol she
consumed rendered her senseless, like she was “slowly going under an anesthetic.”
When LH first began to regain consciousness, she found herself on the bed, with
“tunnel vision,” staring at the ceiling. LH described a gradual process of regaining
consciousness. She still felt numb as she came to, and at first she was unaware that
her pants and underwear had been removed. She recognized the appellant’s face
over her, but she was unaware that he was already penetrating her until she felt
him thrust. In short, she was unable to consent to the sexual act both because she
lacked the cognitive ability to appreciate the sexual conduct in question and because
she lacked the ability to make or communicate an agreement to the sexual conduct—
either one of which rendered her incapable of consenting. The appellant, who
purchased the alcohol for LH, served it to her, and was present when she collapsed
on the couch, would have known that LH was not capable of consenting to a sexual
act. A fair reading of Article 120(b)(3) gives a person of reasonable intelligence notice
that committing a sexual act with LH in that condition is proscribed by the statute.
B. Factual and legal sufficiency
   The appellant contends that the evidence is factually and legally insufficient to
sustain his conviction for sexual assault. We disagree.
   We review questions of legal and factual sufficiency de novo. Art. 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal
sufficiency is whether a rational trier of fact could have found that the evidence met
the essential elements of the charged offenses, viewing the evidence in a light most
favorable to the Government. See United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987). The test for factual sufficiency is whether, after weighing all the evidence in
the record and allowing for the fact that we did not personally observe the witnesses,
we are convinced of the appellant’s guilt beyond a reasonable doubt. Id. at 325.
   The appellant offers two theories of reasonable doubt as to his guilt: that LH lied
about the sexual assault, and that LH may have been mistaken about whether the
appellant had sex with her.
    As to LH lying about the sexual assault, the appellant argues that she lied to her
mother and the Marine Corps about her marijuana use and lied to her boyfriend
about who was accompanying her to Fresno. He asserts that her trial testimony was
inconsistent from one day to the next. Beyond incidents of untruthfulness, the



                                           7
appellant also argues LH had a motive to lie because she likely blamed the appellant
for her disenrollment from the DEP.
    Regarding LH being mistaken about having sex, the appellant points out that
LH was under the influence of alcohol and marijuana on the evening in question,
and that she had been drinking energy drinks. He also argues that she may have
suffered from post-traumatic stress due to her earlier abuse. The combination of
substances and traumatic history, he suggests, may have caused a “flashback” to her
earlier abuse in the form of a dream.8 Further, LH may have confused this dream
with reality and concluded, incorrectly, that the appellant had intercourse with her.
In support of this contention, the appellant points to LH’s Article 32, UCMJ
investigation testimony, with which she was cross-examined, and in which she said
that upon waking the next day she wondered to herself whether she had dreamed
the assault.
   After reviewing the entire record, we are convinced of every element of sexual
assault beyond a reasonable doubt and find that the appellant’s sexual assault
conviction is legally and factually sufficient.
    LH’s in-court testimony was compelling and substantially corroborated by other
evidence at nearly every point one could reasonably expect corroboration. For
example, LH stated that she went to Fresno with the appellant on 8 March 2013; the
appellant’s Payment and Leave Summary confirms that he took leave that day. The
appellant’s bank records reflect a point-of-sale debit card transaction at the
convenience store where LH testified he bought alcohol, Red Bull, and cups.
Facebook messages between the appellant and LH confirm that they had arranged
for the appellant to pick up LH at her home, and LH’s mother recalled the event.
LH’s claim that she was paid $200.00 in cash on 19 March 2013 corresponds to
Facebook messages between LH and the appellant, and to the appellant’s bank
records. The appellant’s girlfriend, who was staying in the same hotel as the
appellant and planning to meet him, tried to contact the appellant at about 2345 on
the night of the assault. The appellant did not answer his phone. A witness without
any significant connection to LH remembered seeing her selling wrestling gear at
the tournament. Most significantly, Facebook messages from LH to her boyfriend on
the night of the assault corroborate that she was with the appellant, that he was
aware that she was smoking marijuana, and that he was teaching her the drinking
game they played that evening. All of this evidence was created before LH had any
motive for retribution against the appellant.
   We find the appellant’s contention that the combination of alcohol, marijuana,
and childhood sexual trauma caused LH to mistakenly believe the appellant
assaulted her does not withstand examination.



   8   Id. at 13.

                                         8
    LH’s testimony revealed insight into what happened to her that evening,
including insight into the limits of her perception and ability to remember. She
convincingly described her awareness of the effect of the marijuana and alcohol,
slowly anesthetizing her in a progressive debilitation until she was no longer able to
remain awake on the couch. She also described the slow return of her senses on the
bed, realizing that she was naked from the waist down and that the appellant was
having sex with her.
   We find that LH’s history of sexual abuse as a young girl was unlikely to have
confused her testimony regarding this evening. LH was molested as a young child,
and the molestation did not involve intercourse. She testified that although she
recalled being molested, that memory was not so significant that it tended to intrude
on her daily thoughts. The different nature of the acts, the remoteness in time, and
the lack of emotional prominence placed by LH on earlier molestation—
demonstrated both by LH’s testimony and that fact that the subject never arose
during pretrial interviews—leave us convinced that LH did not confuse these
memories. Most significantly, the next day LH had soreness in her vagina. LH
described this soreness as similar to the soreness she experienced after she had sex
with her boyfriend, only much more sore. This next-day soreness is inconsistent with
a theory that LH had only imagined sex with the appellant. Although civilian
defense counsel attempted to attribute the vaginal soreness to an unrelated medical
condition, LH credibly insisted that she could distinguish the discomfort caused by
her condition from the internal vaginal soreness caused by intercourse.
C. Instructional error
    The appellant alleges that the military judge erred when he failed to instruct the
members how they were permitted to use LH’s testimony about her sexual abuse as
a child. A military judge may instruct members regarding the proper use of evidence
admitted under MIL. R. EVID 412 in order to avoid unfair prejudice to a party. See
United States v. Dorsey, 16 M.J. 1, 8 (C.M.A. 1983) (noting that the military judge
should have issued an “instruction limiting the use of [MIL. R. EVID 412] evidence,”
instead of excluding said evidence). Civilian defense counsel did not ask for such an
instruction, so the military judge’s failure to give one is reviewed for plain error.
RULE FOR COURTS-MARTIAL 920(f), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). An error is plain error when it is plain and obvious, and when the error
materially prejudiced a substantial right of the appellant. United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011).
    The appellant argues that the evidence of LH’s earlier abuse was “sensational,
inflammatory, and prejudicial,” and that the members might have misused this
evidence.9 In particular, the appellant urges that members: may have used this
evidence to conclude that the appellant was a sophisticated predator who carefully


9   Id. at 18.
                                          9
chose LH because of her status as a previous victim; may have been inappropriately
swayed by sympathy for LH; may have punished the appellant for the actions of
LH’s prior abuser; or may have considered her status as a previous victim as an
aggravating circumstance in sentencing.
    We disagree that the judge committed plain error by not instructing members on
how to use this evidence. Both sides thought that this evidence was relevant to its
theory of the case and attempted to use it to their own advantage. Civilian defense
counsel incorporated LH’s prior sexual abuse into his theory of the case. He explored
the incident in cross-examining LH and the Government’s expert witness,
suggesting that memories of the prior abuse might have caused LH to dream that
she had been sexually assaulted. There is no obvious reason why this evidence would
have confused the members. LH’s disclosure of this evidence at trial was surprising,
but not sensational. It is not information that would tend to inflame the members
against the appellant. There is no evidence that the appellant would have known
about this earlier abuse. None of the counsel knew about it before trial. The military
judge’s decision to not craft a special instruction covering this evidence was not a
plain and obvious error—if it was error at all—and the issue was forfeited.
D. Evidentiary foundation for Facebook messages
    The prosecution introduced Facebook messages between LH and the appellant.
These messages tended to corroborate LH’s testimony concerning her agreement to
travel to Fresno with the appellant to sell wrestling gear. In the messages, a
Facebook account holder with the screen name Freddy Solis reminds LH that he had
talked to her about getting part time work for her and arranges to pick up LH at her
house. After the tournament, he arranges to drop off the money she earned.
   The appellant alleges that the military judge erred by admitting these messages
without sufficient evidence that the appellant was actually a party to the
communication. We disagree.
    A military judge’s decision to admit evidence is reviewed for an abuse of
discretion. “An abuse of discretion occurs when the trial court’s findings of fact are
clearly erroneous or if the court’s decision is influenced by an erroneous view of the
law.” United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citation omitted).
An item of evidence may not be admitted unless its authenticity is demonstrated by
evidence sufficient to support a finding that the matter in question is what its
proponent claims. MIL. R. EVID. 901(a).
   LH testified that she became Facebook friends with the appellant during the
time he was her recruiter, and that his Facebook profile name was “Freddy Solis.”
Because financial problems caused her to lose the use of her cell phone, Facebook
messages were a method she and the appellant used to communicate. LH examined
the messages and recognized the appellant’s picture on the profile. She recognized
the content of the messages she sent to, and received from, the appellant. She also


                                         10
testified that after she arranged through these messages to have “Freddy Solis” pick
her up to go to Fresno, the appellant showed up at her house at the designated time.
    We have no difficulty finding that the prosecution presented sufficient evidence
to support a finding that the appellant was the “Freddy Solis” behind the Facebook
messages. The military judge did not abuse his discretion by admitting this
evidence.
E. Remaining assignments of error
   We have considered the errors raised personally by the appellant and find that
they are without merit. See United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
                                 III. CONCLUSION
   The findings of guilty and the sentence are affirmed.
   Senior Judge PALMER and Judge MARKS concur.


                                          For the Court




                                          R.H. TROIDL
                                          Clerk of Court




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