This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                         Jaelon D. LEWIS
                   Corporal (E-4), U.S. Marine Corps
                               Appellant

                             No. 201900049

                           Decided: 8 June 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                               Military Judge:
                              Jeffrey V. Munoz

 Sentence adjudged 4 October 2018 by a general court-martial con-
 vened at Marine Corps Base Camp Pendleton, California, consisting of
 officer and enlisted members. Sentence approved by the convening
 authority: reduction to E-1, confinement for three years, forfeiture of
 $2,490 pay per month for three years, and a dishonorable discharge.

                             For Appellant:
                        Carol A. Thompson, Esq.
                   Captain Valonne L. Ehrhardt, USMC

                              For Appellee:
                    Major Kerry E. Friedewald, USMC
                  Lieutenant Kimberly Rios, JAGC, USN
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

   Senior Judge TANG delivered the opinion of the Court, in which Sen-
   ior Judge STEPHENS and Judge LAWRENCE joined. Senior Judge
   STEPHENS filed a separate concurring opinion.

                                 _________________________

           This opinion does not serve as binding precedent, but
                may be cited as persuasive authority under
                 NMCCA Rule of Appellate Procedure 30.2.

                                 _________________________

TANG, Senior Judge:
    Appellant was convicted, contrary to his pleas of: one specification of Arti-
cle 80, UCMJ, 1 and two specifications of Article 120, UCMJ. 2 The Article 80
specification charged him with attempting to commit a sexual act upon
Corporal [Cpl] Alpha 3 by penetrating her mouth with his penis while she was
incapable of consenting due to impairment by alcohol. He was also convicted
of abusive sexual contact and sexual assault, respectively, for causing
Cpl Alpha’s hand to directly touch his penis and for penetrating her vulva
with his penis, while she was incapable of consenting due to impairment by
alcohol. 4
    Appellant asserts three assignments of error [AOEs]: (1) the evidence is
legally and factually insufficient because Cpl Alpha was not incapable of
consent; (2) the military judge erred by refusing to grant the Defense motion
to dismiss when the Defense alleged charges were improperly referred




   1   10 U.S.C. § 880 (2012).
   2   10 U.S.C. § 920 (2012).
   3 This is a pseudonym. By time of trial, Cpl Alpha had been promoted to Ser-
geant, however this opinion will refer to her by her rank at the time of the incident.
   4  Appellant was acquitted of specifications alleging he committed those same
three acts by bodily harm, and he was acquitted of a specification alleging he
penetrated her vulva with his penis while she was asleep. The Government also
charged three specifications alleging Appellant penetrated her vulva with his tongue
by bodily harm, while she was incapable of consenting and while she was asleep;
however, the Government dismissed those specifications before trial and moved the
court, successfully, to present evidence of that act pursuant to Military Rule of
Evidence 413.




                                            2
                   United States v. Lewis, NMCCA No. 201900049
                                Opinion of the Court

because the Article 32, UCMJ, Preliminary Hearing Officer [PHO] failed to
produce a detailed report; 5 and (3) the military judge abused his discretion
when he admitted evidence pursuant to Military Rule of Evidence 413. We
find that the evidence was not factually sufficient and reverse. 6

                                    I. BACKGROUND

A. Night at the Club
   Corporal Alpha worked for Appellant at her first duty station in Camp
Pendleton. He was the noncommissioned officer in charge of her shop. They
shared a solely professional, work relationship. After promoting to corporal,
as a peer of Appellant, they maintained a more friendly relationship that
some characterized as flirtatious. One witness testified that Cpl Alpha
started to flirt with Appellant, tugging on his arm and asking him to take her
dancing. And Appellant confided in a friend that he might want to “hook[ ]
up” with Cpl Alpha. 7
    Corporal Alpha went to an off-base club with a group of Marines on
St. Patrick’s Day. She was over 21 years old, but she did not have substantial
drinking experience. She drove her car to the club, arriving shortly before
midnight. She planned on getting someone else—possibly Appellant—to drive
her back to base.
   Sometime between midnight and 0100, she drank five tall mixed drinks
containing multiple liquors. Appellant was seen walking away from
Cpl Alpha after they had been dancing, and Cpl Alpha pulled him back
toward her. They left around 0230 to return to base.




    5 The PHO found there was no probable cause to support Charge I, Specification
2 or Charge II, Specifications 2, 4, or 7—the offenses that alleged that Cpl Alpha was
incapable of consenting. However, he did not attach a detailed written analysis for
those conclusions, merely writing “the exhibits show that alcohol did not inhibit
[Cpl Alpha’s] ability to express non-consent to the [A]ccused’s actions.” Preliminary
Hearing Officer’s Report of 20 Apr 2018, Block 23. The convening authority referred
all charges to court-martial. Charge II, Specification 7 was dismissed before trial, and
Appellant was ultimately convicted of only offenses the PHO advised were not
supported by probable cause.
    6   This conclusion moots AOEs 2 and 3, and we do not discuss them.
    7   Prosecution Exhibit [Pros. Ex.] 16.




                                              3
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

B. Leaving the Club
   Corporal Alpha left the club with Appellant and another Marine because
the person with whom she intended to ride home had already left. As they
walked with Cpl Alpha to Appellant’s car, she was unsteady on her feet, but
was able to walk. 8 She began to have spotty memories. She remembered
vomiting as she was getting into Appellant’s car; she was sitting inside with
the door open, and she vomited onto the ground. Another witness testified
that he held her hair while she vomited outside the vehicle but that she never
vomited while inside the vehicle during the time he was there. She rode in
the backseat, eventually lying down and sleeping.
    Corporal Alpha heard Appellant talking with the other Marine about how
they would get her on base and into her room without her military identifica-
tion card [ID]. The barracks rooms had electronic locks, opened by the
occupant’s military ID. Appellant and the other Marine decided it would be
best to take Cpl Alpha to Appellant’s room because he had no roommate and
therefore a spare bed. Then Appellant dropped off his friend around 0300, 9
leaving only him and Cpl Alpha in the car. This was about 30 minutes after
the group left the club. Appellant moved Cpl Alpha to the front seat, although
she told him “no” and that she just wanted to sleep in the backseat. She felt
dizzy, nauseous, and sleepy. She would later testify this was the most drunk
she had ever been in her life.
   She testified she next recalled that Appellant picked her up because she
“couldn’t walk” over the “rocky area” near the barracks entrance. 10 That
night, Cpl Alpha was wearing three or four-inch open-toe sandal style heels. 11
To reach her barracks room from the parking lot where Appellant parked, she




   8 The witness was asked, “Do you recall if [Cpl Alpha] was able to walk on her
own?” to which he responded, “Not really. Half-and-half. Like, she was good, and
then she wasn’t.” Record at 632 (emphasis added). The defense counsel then oriented
the witness to a date of a prior interview and asked, “You seemed to indicate that she
was able to walk or at least you and Corporal Lewis never assisted her; is that
correct?”—to which the witness answered, “Yes.” Id. It is unclear whether the
witness agreed he made the prior statement or whether he agreed that neither he nor
Appellant had to assist Cpl Alpha to walk.
   9 This is based on a text message Appellant sent at 0302, saying he had just
dropped off his friend.
   10   Record at 453.
   11   These are depicted in Pros. Ex. 11.




                                              4
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

would have to traverse a gravel pit, consisting of rocks of various sizes up to
three inches.
    She had somehow moved from Appellant’s car to the “rocky area,” at
which point she could no longer walk. Then he carried her, “as if holding . . . a
baby,” over the rocky area, then to the second deck. 12 They reached another
hallway where they could turn right to reach Cpl Alpha’s room or left to reach
Appellant’s room. She remembered saying “my room,” but Appellant took her
to his room. She never told Appellant that she could get into her room
without her military ID because she had left it unlocked. Their rooms were
close to one another, “right around the corner” and not far from where they
entered after crossing the rocky area. 13

C. Appellant’s Room and the First Encounter
    The lights were off and the room was dark. He laid her down on the edge
of the bed and put a trashcan near the bed in case she had to vomit. Then he
got in bed and tried to “cuddle” her by wrapping his arms around her body. 14
He asked, “[Cpl Alpha], is this okay?” and she responded by shaking her head
left to right to indicate “no.” 15
   She testified she continued to shake her head and, in an effort to prevent
him from “cuddling,” she rolled onto her back. 16 She rested her hands on her
stomach and tried to sleep. When asked why she did not say “no” out loud,
she testified that, although she was capable of speaking minutes later, at
that moment:
         I couldn’t say, no. All I wanted to do is lay down, go to sleep—
         that was it. If I opened my eyes, if I moved around a lot, if I
         tried to talk while I was laying down, it made me feel nause-
         ous—sick. So all I really wanted to do was go to sleep. 17



   12   Record at 454.
   13   Id. at 455.
   14   Id.
   15 Id. In court, Cpl Alpha demonstrated this by shaking her head left to right
“several times” by the trial counsel’s estimate. Id.
   16  The trial counsel’s question characterized Cpl Alpha’s testimony as suggesting
that she literally “pushed” Appellant away, but she never testified she did this. She
testified that she rolled onto her back in an effort to “push him away.” We interpret
this pushing in a figurative, as opposed to a literal sense. See id. at 455-56.
   17   Id. at 455.



                                          5
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

    She explained further during cross-examination that she could shake her
head but that she thought that talking or opening her eyes would make her
feel nauseous so she did not say anything. She said she didn’t shake her head
vigorously (“I didn’t shake it to—like, super, like, shaking it”) but that she
shook her head more than “slightly.” 18 When she demonstrated this action in
court, she shook her head side to side “several times.” 19
   While she was lying on her back with her hands on her stomach, Appel-
lant grabbed her wrist and put it “where his penis is at.” 20 She explained that
she did not want to touch his penis so, “when he put it there, I just moved my
hand back to my stomach.” 21 She next testified: “I was in and out of it at that
time. So I remember opening my eyes, like, squinting a little bit, and I
remember seeing [Appellant] between my legs. He was performing oral sex on
me.” 22
    By “in and out,” she explained she meant, “Like, I was trying to sleep, so
there w[ere] moments that I was sleeping that I was just—my eyes were
closed and I was just trying to sleep.” 23 She testified that when she “woke
up,” 24 Appellant’s head was between her legs, and because she didn’t want
him to perform oral sex on her, she “kind of” closed her legs by moving her
left leg. 25
   After she moved her leg, he stopped performing oral sex. Then he went to
the side of the bed and pulled down his shorts, and Cpl Alpha realized he
probably wanted her to perform oral sex on him. She thought Appellant
“[m]aybe” wanted to put his penis in her mouth. 26 She did not want to, so she
“moved” her head “to the left.” 27 Then he “grab[bed]” her head with a cupping


   18   Id. at 487.
   19   Id. at 459.
   20   Id. at 456.
   21   Id.
   22 Id. Appellant was charged with this offense but the specifications were dis-
missed before trial. The evidence was admitted pursuant to Military Rule of Evidence
413.
   23   Id.
   24   This was the trial counsel’s question.
   25   Id. at 457.
   26   Id.
   27   Id.




                                             6
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

motion on her forehead and moved it back, but he did not penetrate her
mouth with his penis. 28 She moved her head back to the left.
    She explained that she did not say anything because she was “still very,
very intoxicated” and she “was just laying there” and was “still nauseous”
and “still dizzy.” 29 She testified at trial that, at that moment, she had felt like
she “couldn’t get up.” 30 At that point, Appellant said, “[Cpl Alpha], you are
sending me mixed signals. I don’t want to get in trouble.” 31 She did not say
anything in response. He “grabbed” her by her arms and “sat” her up. 32 Then
she got up from the bed on her own and asked him, “[C]an you check?”
referring to the hallway. 33 She testified that at that moment, she was “just
standing there with [her] eyes closed” while Appellant checked the hallway. 34
It was against the barracks policy to have visitors in any Marine’s barracks
room after 2200. Corporal Alpha knew she was pending formal counseling,
which would become part of her service record, for recently failing to report
her roommate’s previous violation of this rule. 35 A second infraction would
compound her troubles. Appellant responded, “S[***]t,” and Cpl Alpha did
not leave, apparently taking his exclamation to mean that someone was in
the hallway and she could not leave without being seen. 36
   She testified Appellant closed the door then turned her around toward the
bed. He said, “Sleep on the bed. I’ll sleep on the chairs.” 37 She did not leave
but returned to Appellant’s bed and went to sleep. She explained that she



   28Id. Corporal Alpha was not asked and did not testify whether Appellant ever
moved his penis toward her face.
   29   Id. at 458.
   30   Id. at 503.
   31   Id. at 458.
   32   Id.
   33   Id.
   34   Id. at 504.
   35 Her roommate was going to face nonjudicial punishment for allowing her boy-
friend to stay in their room.
   36  During cross-examination, she suggested she would have been happy if another
Marine saw her and claimed that she stayed in Appellant’s room because she wasn’t
“really capable” of walking back to her room, not because she wanted to avoid being
seen. Id. at 492.
   37   Id. at 459.




                                          7
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

went to sleep on Appellant’s bed because she felt better when she was lying
down.

D. Second Encounter
    Corporal Alpha next remembers lying on her side in the bed when she
noticed Appellant “tugging” on her shorts and trying to pull them down. 38 It
was still dark outside and in the room. He was trying to “cuddle” her while
she was lying on her side and he was lying on his side behind her, like the
“big spoon.” 39 She testified he said, “[Cpl Alpha], this is okay,” 40 and that she
shook her head side to side to indicate “no”; however on cross-examination,
when discussing this same act, Cpl Alpha testified that Appellant actually
asked “is this okay.” 41 Then she rolled over from her side to her back, which
resulted in her lying on her back on top of Appellant with her shoulder blades
on top of his arm. She rolled over in an effort to figuratively push him off. He
grabbed her wrist and “moved it to his penis,” and she moved it back because
she “didn’t want [her] hand next to his penis.” 42
    She testified about what happened next: “After that, he, kind of, like,
rolled me over on top of him, but I wasn’t fully on top of him.” 43 His legs were
in a V-shape, apart, and she was lying on top of him with both of her legs
over one of his. 44 He then moved one of his legs in between hers, resulting in
her “just laying there on top of him, like, heavy weight . . . just laying there,”
hanging over his shoulder. 45 At that point, she was “straddling” him with
both of her legs outside of his. 46 While her eyes were closed, he somehow
penetrated her with his penis and she heard him moan. She said, “I don’t




   38   Id.
   39   Id. at 494.
   40   Id. at 459.
   41   Id. at 494 (emphasis added).
   42   Id. at 460.
   43   Id.
   44  During cross-examination, Cpl Alpha described this differently, saying that one
of his legs was between both of her legs before he repositioned them. See id. at 496.
   45   Id. at 461.
   46 Id. at 496. The Defense characterized this position as “straddling,” and
Cpl Alpha agreed, saying, “Yes.” Id.




                                          8
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

know how exactly . . . he penetrated me.” 47 She explained that she was
unable to move because she was “still dizzy, still nauseous” and all she
wanted to do was to sleep. 48 She stated she does not know whether she could
have moved at that point. She continued, “And I was just on top of him. And
that was it.” 49 At no point did she support her own 120-pound body weight.
She explained that she was just like a “limp rag doll.” 50 She didn’t know
whether Appellant was holding her arms or her body or lifting her hips. She
did not know how long sex lasted in this position.
   At some point, Appellant “rolled” her over onto her back. 51 She could not
explain how he accomplished that, but explained that he “rolled [her] over.” 52
But once she was on her back, he continued to penetrate her. She testified
while this was happening, she remembers “squinting” her eyes and opening
them “a little bit” before she fell asleep while he was still penetrating her. 53
She could not recall how intercourse ended.

E. The Next Morning
    She woke up some time later, fully dressed. By then, it was light out. She
could not identify the amount of time that had passed since her last memory
of intercourse and the time she awoke. She acknowledged that it could have
been as little as 10 minutes. She got up, grabbed her shoes and asked
Appellant to check the hallway. Appellant said another Marine was within
view. She did not leave at that moment, but waited until the hallway was
clear. Appellant hugged her; but she did not hug him back. Then she walked
the short distance to her room, unassisted. She still felt intoxicated, but less
than before.
   Back in her room, she used the bathroom. She noticed “liquids” in her
underwear. 54 At 0800 she texted Appellant asking him, “[W]hatever hap-




   47   Id. at 497.
   48   Id. at 461.
   49   Id.
   50   Id. at 497.
   51   Id. at 498.
   52   Id.
   53   Id. at 461.
   54   Id. at 463.




                                          9
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

pened. Let it stay between us please.” 55 Appellant agreed, asked whether she
was “good tho [sic],” to which she responded, “Yeah I’m just waking up.” 56
Appellant asked, “[Y]ou know what we did right? And your [sic] ok with it
right?” but Cpl Alpha did not respond. 57
    She began remembering what happened and started to cry. She texted
her best friend and also made a video message for her where she was crying
and twice said, “I was unconscious.” 58 Instead of sending the message to just
her friend, she testified that she inadvertently sent the video message to all
of her contacts in that particular social media application. She saved the
video and later provided it to Naval Criminal Investigative Service [NCIS]
special agents, and the video was admitted as a prosecution exhibit. Later, at
trial, Cpl Alpha explained that when she said she was “unconscious,” she
meant that she was “in and out of it,” asleep at some times and could not
remember other times. 59
    Corporal Alpha texted her best friend, asking, “Whats [sic] the name of
the person you go talk to after you get taped of [sic] abused,” 60 ostensibly
asking for sexual assault prevention and response procedures. She sent this
text five minutes after Appellant asked, “[Y]ou know what we did, right?” 61
Her best friend called Cpl Alpha, who was crying. The best friend could not
understand Cpl Alpha so she and her husband went to see her. They brought
her to their house where Cpl Alpha showered and slept most of the day. She
was hungover and she vomited. Then she returned to the barracks.
   A fellow Marine drove Cpl Alpha from her best friend’s house back to the
barracks at Cpl Alpha’s request. During the drive, Cpl Alpha was upset. She



   55   Pros. Ex. 4 at 14.
   56   Id.
   57 Id. Hours later, Appellant texted that he had found Cpl Alpha’s military ID.
Corporal Alpha asked Appellant to give it to another Marine to give to her. When
Appellant again asked, “You good tho [sic]?” Cpl Alpha again ignored him. Id.
Another witness testified that Appellant gave Cpl Alpha’s belongings to him, and he
in turn returned them to Cpl Alpha. It was unclear when Appellant came into
possession of Cpl Alpha’s military ID, or whether he had it before returning her to
the barracks or he received it the next morning after she left his room.
   58   Id. at 465.
   59   Id. at 470.
   60   Pros. Ex. 12.
   61   See Pros. Ex. 12 at 1, Pros. Ex. 4 at 14.




                                             10
                   United States v. Lewis, NMCCA No. 201900049
                                Opinion of the Court

said, “I think I said no. I think I said no.” 62 Then she said “I’m pretty sure I
said no.” 63
    At the urging of another friend, she called her mentor and ultimately
made an unrestricted report of sexual assault. She submitted to a sexual
assault forensic examination [SAFE] and reported her allegation to special
agents of NCIS. She provided her phone to NCIS special agents, although she
told them she had deleted all text conversations with Appellant.
   That night, after receiving no responses to his texts, Appellant texted:
             Hey. Can we talk[?] [Another Marine] can be with us too if
         you don’t feel comfortable. But we really gotta talk. I admit I
         was wrong for letting you get on top of me and allowing stuff to
         happen but you were the one who got on top. And when you
         texted me saying “Whatever happened. Let it stay between us
         please. Yeah or nah?” I seriously thought you knew what was
         going on.
            So please can we talk or if you want me to completely leave
         you alone ok I understand. 64

F. Investigation and Trial
    The Government preferred charges against Appellant, alleging the same
acts under a bodily harm theory and under the theory that Cpl Alpha was
incapable of consenting. The Government also charged Appellant with
penetrating Cpl Alpha’s vulva while she was sleeping and penetrating her
vulva with his tongue, alleging three theories of criminality. An Article 32,
UCMJ, preliminary hearing was conducted. The PHO determined that there
was not probable cause to believe Appellant committed the offenses under the
theory that Cpl Alpha was incapable of consenting. Nevertheless, the
convening authority referred all charges to general court-martial, dismissed
some charges before trial, and the members convicted solely on offenses
alleging that Cpl Alpha was incapable of consenting. At trial, the Govern-
ment and Defense presented evidence and witnesses who relayed the facts
summarized above. Further evidence is summarized below.




   62   Record at 704.
   63   Id.
   64   Pros. Ex. 4 at 15.




                                       11
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

   1. Defense cross-examination of Corporal Alpha
   Corporal Alpha acknowledged that, although she thought she would be-
come ill if she spoke, she was able to speak both before and after the times
she said she was only able to shake her head “no.” She agreed she could not
be sure whether Appellant saw her shake her head “no” in the darkness of
the room in the middle of the night. She agreed that after Appellant said he
was getting “mixed signals,” he stopped and went to sleep in his chair.
    At trial, the Defense established that Cpl Alpha made some inconsistent
statements to her friends in the days after the assault. When Cpl Alpha
learned that Appellant was telling others that Cpl Alpha was on top of him
during sex, Cpl Alpha told her best friend that was “bull[***]t.” 65 She also
told her friends she believed she was pregnant, even though she had begun to
menstruate on the day of the alleged assault.
    The defense counsel asked Cpl Alpha whether it was possible she volun-
tarily moved her hand and slid it down into Appellant’s shorts. She replied,
“No, I don’t think so,” and “I wouldn’t do that.” 66 She later stated that she did
not do that. She also said she would not have done that while sober and that
she was only trying to sleep, so she would not have moved her hands away
from her stomach because she holds her hands on her stomach when she
sleeps.
    The Defense also presented two prior inconsistent statements by
Cpl Alpha. She had previously said she asked Appellant to check the hallway
because she did not want to get in trouble. However, in court she testified
that she would have welcomed getting in trouble because she would have
preferred to leave rather than stay in Appellant’s room. In court, she said she
reflexively asked Appellant to check the hallway out of habit. In the second
impeachment, the Defense presented Cpl Alpha’s prior statement stating
that she would have walked back to her own barracks room if there had been
no one in the hallway the first time Appellant checked. At trial, she testified
that she was incapable of walking.
    During cross-examination of Cpl Alpha’s best friend, the Defense asked
about a text message Cpl Alpha sent. At some point, Cpl Alpha told her best
friend that if she “let it go,” the staff noncommissioned officers would be




   65   Record at 506.
   66   Id. at 495.




                                          12
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

disappointed in her, apparently referring to her perceived need to make an
unrestricted report of sexual assault. 67

   2. Evidence presented at trial
    At trial, the Government entered additional statements from Appellant,
including:
   (1) A social media post he sent shortly after he awoke sleeping in his
chair, at 0423, in which he wrote “I miss my bed [sad crying emojis] hate
having to sleep in my chair cuz SOMEBODY can’t handle themselves and I
have to give up my bed. Woke up with the worst backache ever.”68
    (2) Messages Appellant sent to a female friend, 69 including “Love playing
babysitter” sent around 0230, before Appellant returned to base. Then, after
Cpl Alpha had left his room and this friend asked about Appellant’s night, he
wrote “Long story short a Marine from my job went out with us and she got
obliterated drunk. She got kicked out, threw up on me and Sean, threw up on
my car, threw up on my shoes, threw up inside the car, and threw up on me
again. And she lost her room key so I let her crash in my room and I slept on
the chair.” 70
    (3) Messages Appellant sent to the male Marine who rode with Appellant
and Cpl Alpha back to base, all of which were sent after 0700 that morning:
“She painted all over me and my floor,” 71 “I wanna die.” When that Marine
said, “She seemed good when I left lol,” Appellant replied, “Nah she started
throwing up again moment I left the parking lot. All over my back seat then
got to the barracks. I picked her up and she puked on me again and duty was
coming so I just took her to my room she puked again on my floor AND MY
OTHER PAIR OF JORDANS!!! I was so f[***]ing pissed I let her crash on my
bed and I slept on the chair keeping the bucket near her ass.” 72 He also




   67   Id. at 674.
   68   Pros. Ex. 9.
   69  At the time of the incident, this female friend was a potential romantic pro-
spect, but had not yet begun to date Appellant, according to one witness.
   70   Pros. Ex. 13.
   71   The recipient of this message testified he believed this referred to vomiting.
   72   Pros. Ex. 15 at 1.




                                            13
                   United States v. Lewis, NMCCA No. 201900049
                                Opinion of the Court

wrote, “I’m still pissed. I wanted to punch her ass in her sleep. I’m on my way
to the car wash right now tho it smells like liquor vomit in my car.” 73
    (4) A text message conversation with a male Marine. Appellant apparent-
ly told this friend that he might want to “hook[ ] up” with Cpl Alpha on the
night of the incident. The following exchange occurred:
         Friend:        And yeah man I’m worried if u did something she’d
                        snitch and if u hooked up she’d be under [their Pla-
                        toon Corporal’s] advice to f[***]k you over?
         Friend:        U need that consent on [sic] writing or recorded the
                        way these snakes are.
   Appellant:           That’s a possibility. But you never know[.] And even
                        if I hooked up with her I could just ask for consent.
   Appellant:           And Ima record it on my phone lol. 74
    The Government presented the testimony of one of Appellant’s friends
who said Appellant “briefly” told him what had happened with Cpl Alpha,
including that he had had intercourse with her. 75
   During closing arguments, the Defense argued Appellant exaggerated
Cpl Alpha’s intoxication, falsely claiming she vomited more times than she
did because he did not want others to think they had had sex. The Defense
argued Appellant did this because he wanted to honor Cpl Alpha’s request
not to tell anyone they had had sex.
   Although Cpl Alpha could not verify whether she vomited inside Appel-
lant’s vehicle, the Government presented evidence that Appellant conducted
Internet searches later that day for car shampoo and carpet cleaner.
   Forensic evidence presented at trial suggested that Appellant penetrated
Cpl Alpha’s vulva and did not likely ejaculate.

   3. Expert testimony
   The Defense presented the testimony of an expert psychiatrist, an active
duty Navy doctor, who testified about the effects of alcohol on the human
body, especially its effects on memory. Alcohol is a disinhibitor and is known




   73   Id.
   74   Pros. Ex. 16.
   75   Record at 647.




                                            14
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

to “decrease sexual inhibitions.” 76 He testified that vomiting serves to
eliminate alcohol from the body and can make an intoxicated person feel
better. He also testified that memory is “dynamic and fluid.” 77 According to
the expert, a person’s memories can be affected by their emotions and can be
selectively saved or rejected depending on their “consistency with [the
person’s] values and truths.” 78 He added that trauma can reinforce memo-
ries—true or otherwise, as could repetition.
    The expert described the effects of alcohol on memory formation and reli-
ability and a person’s ability to consolidate memories. In a “classic blackout,”
a “key component of memory formation is shut off.” 79 A person experiencing
classic blackout can “look[ ] completely normal” and engage in “normal
activities” but have no recollection of what they did. 80 They lack recollection
because their memories were “never recorded” because they were “never
formed.” 81
    People do not know they are experiencing a blackout, and people interact-
ing with others who are experiencing a blackout may be unaware that the
other will later lack memory for events that took place. A person experiencing
a blackout will likely show other signs of extreme intoxication. The classic
blackout can consist of a fragmentary (remembering pieces) or an en bloc
(total) blackout. The expert noted there were even cases in which persons
experiencing a blackout appeared in control of their actions and were able to
complete high functioning tasks such as flying jets and performing surgeries.
They can have the “cognitive ability to appreciate what they are doing” and
are capable of acting with volition and intention. 82 They can still agree to
have sex and participate in sexual acts. The mere fact that a person experi-
ences a blackout does not mean that the person is unable to consent. The
expert explained that unless a person is “obtunded,” or “almost comatose,”




   76   Id. at 743.
   77   Id. at 737.
   78   Id. at 738.
   79   Id. at 739.
   80   Id.
   81   Id. at 741.
   82   Id. at 743.




                                          15
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

they have the ability to consent, meaning they would have the capability to
knowingly, intentionally, and voluntarily engage in sexual activity. 83
    Rapid consumption of high-proof liquor is correlated with blackouts. Peo-
ple who have experienced blackouts commonly believe they must have been
unconscious or asleep when, in fact, they were awake but lack memories
because they were experiencing a blackout. People cannot remember “the
point at which [they] fall asleep.” 84 When a person has experienced a frag-
mentary blackout, their brain tends to want to “fill . . . in” the gaps in
memory, typically with a narrative consistent with the person’s values and
self-beliefs. 85
    The expert also explained that intoxication can cause myopia, or short-
sightedness, in which the person can only focus on the most immediate
challenges or events. A person experiencing myopia may be able to remember
an act, but not how that act occurred. The expert explained: “If somebody is
in a situation that is more stimulating, that’s going to increase their atten-
tion, their focus—increase the likelihood that they may experience memo-
ries.” 86 The person would not appear any more alert, but “internally, their
alertness and their internal stimulation has increased to the point that they
had enough resources online . . . to encode and process memories.” 87 The
expert opined that it would make sense for someone to recall sex but not
recall any role they played in initiating or participating in the act.

                                   II. DISCUSSION

A. Standard of Review
    We are mandated to exercise a “unique statutory function” under Article
66, UCMJ. 88 We must conduct a de novo review and may “affirm only such
findings of guilty” as we find are “correct in law and fact.” 89




   83  The expert further defined “obtunded” as “severely sedated, minimally respon-
sive to the environment,” and “a step above coma.” Id. at 768.
   84   Id. at 761.
   85   Id. at 745.
   86   Id. at 764.
   87   Id.
   88   United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003).




                                           16
                   United States v. Lewis, NMCCA No. 201900049
                                Opinion of the Court

    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, the members of the [Service court of appeals] are themselves
convinced of the [A]ccused’s guilt beyond a reasonable doubt.” 90 We must take
“a fresh, impartial look at the evidence,” and we need not give “deference to
the decision of the trial court . . . beyond the admonition in Article 66, UCMJ,
to take into account the fact that the trial court saw and heard the witness-
es.” 91
    “By ‘reasonable doubt’ is not intended a fanciful or ingenious doubt or
conjecture, but an honest, conscientious doubt suggested by the material
evidence or lack of it in this case. . . . The proof must be such as to exclude not
every hypothesis or possibility of innocence, but every fair and rational
hypothesis except that of guilt.” 92
    Having carefully considered the evidence presented at trial, and taking
into account “the fact that the trial court saw and heard the witnesses,” we
are not convinced of Appellant’s guilt beyond a reasonable doubt. 93

B. Elements of the Offenses and Defenses
    The elements of Charge I, Specification 2, attempted sexual assault are:
   (1) that Appellant attempted to penetrate Cpl Alpha’s mouth with his
penis;
   (2) that he did so with specific intent to commit the offense of sexual as-
sault while Cpl Alpha was incapable of consenting;
    (3) that the act amounted to more than mere preparation and constituted
a substantial step; and
    (4) that the act apparently tended to bring about the commission of the
offense in that the act apparently would have resulted in the commission of




    89   Art. 66, UCMJ (2012); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
    90   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
    91   Washington, 57 M.J. at 399.
    92   United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994) (affirming propriety
of the military judge’s definition of reasonable doubt).
    93   Washington, 57 M.J. at 399.




                                            17
                United States v. Lewis, NMCCA No. 201900049
                             Opinion of the Court

the offense but for Cpl Alpha’s act of turning her head away, which prevented
completion of the offense.
   The underlying attempted offense has the following elements:
   (1) that Appellant penetrated Cpl Alpha’s mouth;
   (2) that he did so while she was incapable of consenting; and
    (3) that he knew or reasonably should have known that she was incapable
of consenting.
   For this offense, as a specific intent offense, Appellant would have to ac-
tually know that Cpl Alpha was incapable of consenting, and any belief—even
an unreasonable mistaken belief—that Cpl Alpha was capable of consenting
would negate this element and constitute a defense.
   The elements of Charge II, Specification 2, abusive sexual contact were:
    (1) that Appellant committed sexual contact by causing Cpl Alpha to di-
rectly touch his genitalia;
   (2) that he did so when Cpl Alpha was incapable of consenting;
    (3) that he knew or reasonably should have known that she was incapable
of consenting; and
   (4) that he acted with the intent to gratify his sexual desires.
    The defense of mistake of fact as to Cpl Alpha’s capacity to consent ap-
plies. 94
   The elements of Charge II, Specification 4, sexual assault while Cpl Alpha
was incapable of consenting were:
    (1) that Appellant caused penetration of Cpl Alpha’s vulva, however
slight;
   (2) that he did so when Cpl Alpha was incapable of consenting;
   (3) that he knew or reasonably should have known that Cpl Alpha was
incapable of consenting.




   94 For this specification, the military judge instructed that it was a defense if
Appellant mistakenly believed that Cpl Alpha was capable of consent, even if his
mistake had been unreasonable. The military judge should have instructed that
Appellant’s mistake had to be reasonable in order to negate the part of the element
that he “reasonably should have known” of Cpl Alpha’s incapacity. In conducting our
factual sufficiency review, we apply the correct standard.




                                        18
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

    The defense of mistake of fact as to capacity to consent and voluntary
intoxication apply. For all three offenses, consent is relevant to determining
whether the Government met its burden of proving the elements of the
offenses.
    We are called upon to independently determine whether we are convinced
beyond a reasonable doubt of Appellant’s guilt. But reasonable doubt is not
intended to be fanciful, speculative, or ingenious doubt or conjecture, but an
honest and actual doubt suggested by the material evidence or lack of it in
the case. It is a genuine misgiving caused by insufficiency of proof of guilt.
Proof beyond a reasonable doubt is proof that leaves us firmly convinced of
the Appellant’s guilt. If we believe there is a “real possibility” that he is not
guilty, there is reasonable doubt, and we cannot affirm Appellant’s convic-
tion.

   1. United States v. Pease
   For all three offenses, the Government had to prove beyond a reasonable
doubt that Cpl Alpha was incapable of consenting. Our decision turns on this
element.
   Consent is a “freely given agreement to the conduct at issue by a compe-
tent person.” 95 A sleeping, unconscious, or incompetent person cannot
consent. 96 The members acquitted Appellant of committing sexual assault
while Cpl Alpha was asleep, and we do not find evidence that she was
unconscious. 97 Therefore, we must consider whether Cpl Alpha was incompe-
tent.
   In United States v. Pease, the Court of Appeals for the Armed Forces
[CAAF] affirmed, with one modification, this Court’s definition of the terms
“competent person,” “incompetent,” and “incapable of consenting.” 98 A “com-
petent person” is one who “possesses the physical and mental ability to




   95   Article 120(g)(8)(A), UCMJ, 10 U.S.C. § 920(g)(8)(A) (2012).
   96   Article 120(g)(8)(B), UCMJ.
   97  Corporal Alpha testified that she lacked memory of what happened after
Appellant penetrated her vulva while she was on her back. She characterized this as
having fallen asleep during sex. Whether Cpl Alpha fell asleep or simply lacked
memory because she was experiencing a fragmentary blackout, we do not find that
she lost consciousness.
   98   75 M.J. 180 (C.A.A.F. 2016).




                                           19
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

consent.” 99 An “incompetent person” is one “who lacks either the mental or
physical ability to consent” for a statutorily enumerated reason—in this case
intoxication by alcohol. 100 “Incapable of consenting” means “lack[ing] the
cognitive ability to appreciate the sexual conduct in question or [lacking] the
physical or mental ability to make or communicate a decision about whether
they agreed to the conduct.” 101 If Cpl Alpha met any one of those three
standards, she was incapable of consent.
    The Military Judge’s Benchbook contains this standard instruction which
restates the Pease standard as follows:
              A “competent person” is a person who possesses the physi-
          cal and mental ability to consent.
              An “incompetent person” is a person who lacks either the
          mental or physical ability to consent because she is: (1) asleep
          or unconscious; (2) impaired by a drug, intoxicant, or other sim-
          ilar substance; or (3) suffering from a mental disease or defect
          or a physical disability.
              To be able to freely make an agreement, a person must first
          possess the cognitive ability to appreciate the nature of the
          conduct in question and then possess the mental and physical
          ability to make and to communicate a decision regarding that
          conduct to the other person. However, if the person has the
          ability to appreciate the conduct and communicate lack of con-
          sent, but does not do so out of fear or because of some other ex-
          ternal influence counteracting voluntariness, the sexual con-
          duct is not voluntary.
              A person is “incapable of consenting” when she lacks the
          cognitive ability to appreciate the sexual conduct in question or
          the physical or mental ability to make or to communicate a de-
          cision about whether she agrees to the conduct. 102




   99   Id. at 185.
   100   Id.
   101   Id. at 185-86 (alterations in original).
   102 Military Judge’s Benchbook, Dep’t of the Army Pamphlet 27-9 at 3-45-14, note
13 (10 Sep 2014, incorporating changes through April 2018) (modified to include only
feminine pronoun).




                                              20
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

    This instruction is correct, and we will apply it to our review. The CAAF
has further interpreted the standard set forth in Pease. In United States v.
Bailey, the court held that the Pease standard does not require that the
victim was “completely unable” to communicate. 103

   2. Cognitive ability to appreciate the sexual conduct in question
    The Government argues that Cpl Alpha lacked the cognitive ability to
appreciate the sexual conduct, and that she had only a “retrospective
understanding” and appreciation of the conduct after she awoke later that
morning. 104 The operative time for determining Cpl Alpha’s capacity to
consent was during the act in question. The fact that Cpl Alpha may not
remember all aspects of her encounter does not mean that she necessarily
lacked capacity to consent. 105
    For the attempted act of fellatio, according to her own testimony,
Cpl Alpha was awake and aware of what was happening. She understood
that Appellant was removing his shorts and she interpreted that as meaning
he was asking her to perform oral sex. 106 In fact, she testified that she twice
moved her head to avoid such activity. For the sexual contact between her
hand and his penis, she was aware that her hand was on his penis and
immediately reacted by removing her hand. Finally, Cpl Alpha testified that
she knew Appellant was penetrating her vagina with his penis. She was
awake and aware of what was happening when, according to her testimony,
he rolled her body on top of his and penetrated her while she was on top of
him. She was likewise aware of what was happening when he penetrated her
while she was lying on her back. Even if Cpl Alpha lacks memory of how the
act ended—either because of an alcohol-induced blackout or because she fell


   103 United States v. Bailey, 77 M.J. 11, 13 (C.A.A.F. 2017) (affirming military
judge’s refusal to instruct that “ ‘[i]ncapable’ means a complete and total mental
impairment . . . which rendered the alleged victim completely unable to appraise the
nature of the sexual conduct at issue, completely unable to physically communicate
unwillingness to engage in the sexual conduct at issue, or otherwise completely
unable to communicate competent decisions”).
   104   Appellee’s Answer of 18 Nov 2019 at 22.
   105  Corporal Alpha remembers all aspects of the two sexual encounters except
that she said she came to realize Appellant was performing oral sex on her, and she
testified that she believes she fell asleep while she was on her back and Appellant
was penetrating her.
   106Also, on cross-examination, Cpl Alpha agreed that she understood what was
happening. Record at 503 (“I guess I knew something was happening.”).




                                          21
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

asleep during the sex act—she was not unconscious, and the members
acquitted Appellant of committing this act while she was asleep. Further-
more, she was aware of the act as it was beginning, both when she was on top
and when Appellant was on top of her.
    The evidence clearly indicates Cpl Alpha had the cognitive ability to ap-
preciate the sexual conduct covered by all three offenses. During the three
acts for which Appellant was convicted, Cpl Alpha was awake, knew what
was happening, formed a memory of what was happening, and was able to
recall that memory shortly after waking up later that same morning.

   3. Physical or mental ability to make or to communicate a decision

          a. Sexual contact and attempted oral sex
    The Government argues Cpl Alpha lacked the mental ability to communi-
cate her lack of consent to the sexual contacts and attempted oral sex act. It
asserts that Cpl Alpha “could not formulate verbal responses,” and could only
shake her head “no” or remove her hand. 107 The Government also writes,
“Although [Cpl Alpha] had the physical ability—albeit minimal—to show her
unwillingness to engage in the conduct by moving away, her intoxication
impeded her mental ability to verbally communicate her lack of consent.” 108
    Appellant twice put Cpl Alpha’s hand on his penis—once upon first enter-
ing his barracks room and again after he got into bed with her after he
awoke. In the first instance, Cpl Alpha was not asleep. She was awake, aware
of what was happening, decided she did not want to touch Appellant’s penis,
and pulled her hand away. By her physical act, she showed she was able to
make and communicate a lack of consent. 109
    The second time Appellant put Cpl Alpha’s hand on his penis, she was
also awake. She knew what was happening, and again she was able to make
a decision and communicate a lack of consent by removing her hand. The
Government argues that, although Cpl Alpha had the physical ability to



   107   Appellee’s Answer at 19.
   108   Id.
   109 Since the members acquitted Appellant of sexual contact by bodily harm—i.e.,
nonconsensual sexual contact—the question of whether Cpl Alpha actually consented
to the contact is not for this Court to consider. Although consent is relevant to
determining whether the Government met its burden to prove the elements, our
analysis turns on the element of the offenses Appellant was convicted of, which
requires proof that Cpl Alpha was incapable of consenting.




                                        22
                United States v. Lewis, NMCCA No. 201900049
                             Opinion of the Court

communicate, she lacked the mental ability to do so. We disagree. The very
act of removing her hand—in order to cease the sexual contact she found
offensive—demonstrates that she had the mental ability to make and
communicate a decision about what she wanted to do. By her testimony, it
was a choice to remove her hand both times because she did not want to
touch Appellant’s penis. These were not acts of automatism or reflex. As
described by Cpl Alpha herself, these acts were the product of thought,
followed by intentional physical action, refuting the government’s claim that
Cpl Alpha lacked the mental ability to communicate a decision about whether
she consented. 110 Corporal Alpha also testified that she communicated her
lack of consent by shaking her head “no” to indicate she did not want to
“cuddle” with Appellant, and she rolled over. And before the first incident,
she indicated she did not want oral sex from Appellant by closing her legs
and did not want to give oral sex to Appellant by moving her head to avoid
fellatio.
    The Government’s assertion that Cpl Alpha was unable to “formulate
verbal responses” is further contradicted by other evidence. During the first
sexual interaction, Cpl Alpha had recently been able to talk when she told
Appellant “my room.” Then, after Appellant told her she was giving him
“mixed signals” and he stopped all sexual contact, Cpl Alpha stood up without
assistance and asked Appellant to check the hallway. These words and
actions demonstrate she had the mental ability to form coherent thoughts
and was able to speak to convey those thoughts shortly before and shortly
after both acts of sexual contact.
   As for the attempted act of oral sex, we reach the same conclusion based
on the same logic. This act occurred once, shortly after entering Appellant’s
room. Shortly before and shortly after the attempted act, Cpl Alpha was
capable of speaking. 111 Corporal Alpha testified that she knew what Appel-
lant wanted, decided that she did not want to perform oral sex on him, so she
turned her head away. She had the physical ability to communicate a lack of
consent, and that physical act was the product of a mental decision that she



   110 The fact that Appellant should have confirmed Cpl Alpha’s consent before
causing the sexual contacts does not change our treatment of the element of capacity
to consent.
   111Corporal Alpha testified that she “couldn’t talk” when Appellant appeared to
motion for her to perform oral sex, but she continued by explaining that she just
wanted to sleep because she was drunk. Id. at 503. But by her own testimony, she
was able to talk shortly before and after this moment.




                                        23
                      United States v. Lewis, NMCCA No. 201900049
                                   Opinion of the Court

did not want to perform oral sex. Therefore, she had the mental ability to
decide whether she wanted to engage in the sexual conduct and to communi-
cate her decision. We are not convinced beyond a reasonable doubt that
Cpl Alpha lacked the physical or mental ability to decide whether to partici-
pate in sexual acts and to communicate her choice. 112

          b. Intercourse
    The Government argues Cpl Alpha lacked both the physical and mental
ability to make or communicate a decision about whether she agreed to the
act of intercourse because she was “dizzy and nauseous.” 113 It asserts she was
“too drunk to physically rebuff him or explicitly tell him ‘no.’” 114
    This act occurred once, in two positions, during the second sexual encoun-
ter after both Appellant and Cpl Alpha woke up in the early morning hours.
Corporal Alpha testified that she felt nauseous and could not tell Appellant
“no.” However, Cpl Alpha testified that just before this sex act, she had
shaken her head “no” when Appellant tried to “cuddle” her, moved onto her
back, and removed her hand when he put it on his penis. These acts, coupled
with Cpl Alpha’s ability to speak before and shortly after the first encounter
as described above, make us unconvinced, beyond a reasonable doubt, that
she lacked the physical and mental ability to make and communicate a
decision about whether she agreed to the sexual conduct.

   4. Effect of alcohol induced fragmentary blackout
   In support of its argument that Cpl Alpha lacked the mental capability to
communicate a decision about consent to the attempted act of oral sex and
the acts of sexual contact, the Government notes that Cpl Alpha was “in and
out” 115 and testified that she did not realize Appellant was performing oral
sex on her until she looked down and saw him. 116 Additionally, Cpl Alpha




   112 We also question whether Appellant’s acts (pulling down his shorts and using
his hands to turn her head, but desisting after she turned her head away a second
time) apparently would have resulted in the commission of the offense but for
Cpl Alpha’s act of turning her head away, which prevented completion of the offense.
   113   Appellee’s Answer at 20.
   114   Id. at 21.
   115 Corporal Alpha described this as “there [were] moments that I was sleeping
that I was just—my eyes were closed and I was just trying to sleep.” Record at 456.
   116   Appellee’s Answer at 19.




                                          24
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

testified she believed she fell asleep while Appellant was penetrating her
while he was on top of her.
   Corporal Alpha’s testimony is consistent with a fragmentary blackout.
The Defense expert testified that it is common for persons experiencing a
blackout to believe that they fell asleep or were unconscious when in fact they
simply lack memory for the event. He also testified that “people don’t
remember falling asleep.” 117 Based on this testimony, we do not interpret,
beyond a reasonable doubt, Cpl Alpha’s feeling of being “in and out” to mean
she was actually asleep or losing consciousness.
   As relates to the offenses of which Appellant was convicted, Cpl Alpha
does have memories of those acts, and the memories to which she testified
reveal that she could appreciate the sexual conduct at issue and make and
communicate a decision about whether she agreed.

   5. The Government’s additional arguments
    The Government argues that Cpl Alpha’s “retrospective understanding of
the nature of the conduct, after several hours of sobering up, does not
undermine her inability to appreciate the sexual conduct at the time.” 118 They
cite United States v. Robinson119 for this proposition. In Robinson, the CAAF
assessed a legal sufficiency challenge alleging there was insufficient evidence
to prove Robinson knew or should have known that the victim was incapable
of consenting. Using the legal sufficiency standard, the court viewed the
evidence in the light most favorable to the prosecution and affirmed the
conviction. 120 Robinson is distinguishable from this case. First, Robinson
involved a challenge to a different element—the appellant’s knowledge, not
the victim’s state. 121 Second, the victim in Robinson had no awareness the



   117   Record at 761.
   118   Appellee’s Answer at 22.
   119 77 M.J. 294 (C.A.A.F. 2018) (affirming Appellant’s conviction as legally suffi-
cient because Appellant knew or reasonably should have known the victim was
incapable of consenting).
   120 See id. at 297. The majority concluded that the evidence was legally sufficient
to prove Appellant’s knowledge because: the victim was apparently intoxicated, had
stumbled, slurred her speech, and drove recklessly. Moreover, Robinson admitted to
investigators that the victim was “probably too intoxicated to consent” to sex. Id. at
298.
   121 Robinson did not challenge the legal sufficiency of proof on the element that
the victim was incapable of consenting, therefore the CAAF did not specifically



                                         25
                    United States v. Lewis, NMCCA No. 201900049
                                 Opinion of the Court

sexual act was occurring until after it had already begun. Not so here. At
each juncture of the offenses of which Appellant was convicted, Cpl Alpha’s
testimony reveals she had the cognitive ability to appreciate what sexual act
or contact Appellant sought or began, at the time they were happening. We
find Robinson factually distinguishable, and it does not change our view of
the lack of factual sufficiency in this case. 122 Likewise, we find this case
distinguishable from the facts in United States v. Mannan123 and United
States v. Khoi Pham. 124 In Mannan, the Army Court of Criminal Appeals
rejected Mannan’s argument that his victim was capable of consenting. In
that case, the victim did not realize that Mannan was penetrating her vagina
(digitally, then with his penis) until each penetration was already occur-
ring. 125 The court found that the victim’s later realization of the acts and
capacity to communicate did not change the fact that Mannan first penetrat-
ed her when she lacked capacity, satisfying the elements of the offense upon
penetration. In Khoi Pham, the victim was not aware that the appellant had
penetrated her. She gained awareness during the act, while the appellant
was already penetrating her.
    This Court’s published case of United States v. Solis 126 is also distinguish-
able. In Solis, the victim felt anesthetized by a combination of medical grade
marijuana and liquor, fell asleep on a couch, then “came to” with a “slow
return of her senses” on a bed, having no memory of having moved, while
Solis was already penetrating her. 127




discuss that element. However, even on this element Robinson is factually distin-
guishable from this case because the victim in Robinson was unaware she was being
penetrated until it was already happening. Her first memory of Robinson being in
her room was that he was on top of her, penetrating her.
    122Nevertheless, we view Robinson as an example of our superior court’s view of
the Pease standard. Our conclusion in this case is not inconsistent with Robinson.
    123   2019 CCA LEXIS 169, No. 20170096 (A. Ct. Crim. App. Apr. 11, 2019) (unpub.
op.).
      2018 CCA LEXIS 117, No. 201600313 (N-M. Ct. Crim. App. Mar. 8, 2018)
    124

(unpub. op.).
    125We further note that we are not bound by a sister service court’s factual de-
termination, as the review for factual sufficiency pursuant to Article 66, UCMJ, is a
case-specific de novo review by the assigned panel.
    126   75 M.J. 759 (N-M. Ct. Crim. App. 2016).
    127   Id. at 764-65.




                                           26
                  United States v. Lewis, NMCCA No. 201900049
                               Opinion of the Court

    This case is different. Corporal Alpha was aware of what was happening
and displayed she was capable of communication before or as each act was
happening, although she testified she believed she fell asleep during the last
act of intercourse. 128
   On the facts as relayed by Cpl Alpha, and taking into account the fact
that the trial court saw and heard the witnesses, 129 we are not convinced
beyond a reasonable doubt that Appellant is guilty of the offenses of which he
was convicted. Accordingly, it is our duty to reverse these convictions.

                                 III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings of guilt are not factually sufficient.
Accordingly, the findings and sentence are SET ASIDE. Charge I, Specifica-
tion 2 and Charge II, Specifications 2 and 4 are DISMISSED WITH
PREJUDICE.
   Senior Judge STEPHENS and Judge LAWRENCE concur.




   128 Appellant was acquitted of this offense. Even if Cpl Alpha fell asleep, her later
action cannot inform his knowledge at an earlier point in time.
   129   Washington, 57 M.J. at 399.




                                          27
                  United States v. Lewis, NMCCA No. 201900049
                          STEPHENS, S.J. (concurring)


STEPHENS, Senior Judge (concurring):
    I join in the Court’s opinion without reservation. This Court is aware that
in determining factual sufficiency under Article 66, Uniform Code of Military
Justice [UCMJ], we are “limited to the evidence presented at trial.” 1 We have
done just that, and only that, in finding a lack of factual sufficiency. Nonethe-
less, we are still charged with reviewing the “entire record.” 2 In doing so, I
note the Article 32 Preliminary Hearing Officer [PHO] concluded in his
report to the convening authority [CA] that the specifications for which
Appellant was eventually found guilty lacked probable cause. 3 I write
separately to remind trial counsel about their ethical duties concerning
probable cause and to express concerns about the Article 32, UCMJ, Prelimi-
nary Hearing process.
    There is nothing in the record suggesting any of the trial counsel person-
ally believed these specifications lacked probable cause or acted unethically.
However, all trial counsel should be reminded of their duty under our Rules
of Professional Conduct as found in JAG Instruction 5803.1E. 4 Under Rule
3.8.a(1), “Special Responsibilities of a Trial Counsel and Other Government
Counsel,” a trial counsel “shall recommend to the convening authority that
any charge or specification not supported by probable cause be withdrawn.”
Given this Rule, the trial counsel must have believed these specifications
were supported by probable cause. But a PHO’s recommendation that a
specification lacks probable cause should give the trial counsel pause. Trial
counsel must be more concerned with diligently investigating, preparing, and
presenting the Government’s case rather than merely winning. Junior
counsel can be assured that opposing counsel, supervisors, convening
authorities, and military judges will more readily note the skill and fairness
in how a case is tried than the result.




   1   United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007).
   2 Art. 66(d) (1), UCMJ (2019) (emphasis added). See United States v. Jessie, ___
M.J. ___, No. 19-0192, 2020 CAAF LEXIS 188 at *8 (C.A.A.F. Apr. 6, 2020).
   3   Art. 32, Preliminary Hearing Officer’s [PHO] Report at 2.
   4  JAGINST 5803.1E (Jan. 20, 2015). Civilian prosecutors have a similar, but not
identical, rule. See American Bar Association, Model Rules of Professional Conduct,
Rule 3.8: Special Responsibilities of a Prosecutor. “The prosecutor in a criminal case
shall . . . refrain from prosecuting a charge that the prosecutor knows is not support-
ed by probable cause.”




                                            1
                  United States v. Lewis, NMCCA No. 201900049
                          STEPHENS, S.J. (concurring)

     The current Article 32 Preliminary Hearing process leaves open the pos-
sibility for future courts-martial to have similar outcomes to this case. One of
the stated purposes of the Preliminary Hearing is for an “impartial hearing
officer” to determine “whether or not there is probable cause to believe that
the accused committed the offense charged.” 5 Of course, this determination is
really just an advisory opinion and is not binding on the convening authori-
ty. 6 But this process ought to serve as some check against service members
facing felony-level charges that lack probable cause.
    Service members understand the nature of their profession means some
fundamental rights will be curtailed for the purposes of promoting good order
and discipline. 7 The Fifth Amendment to the Constitution makes clear that
one of those curtailed rights is the right to a grand jury. 8 The right to a grand
jury traces its origins to Magna Carta, and even before. 9 Despite the popular
quip that a grand jury could “indict a ham sandwich,” 10 it seems a matter of
fundamental fairness that Americans–even service members—are entitled to
some “primary security . . . against hasty, malicious and oppressive persecu-
tion . . . to determine whether a charge is founded upon reason or was
dictated by an intimidating power.” 11 Just as service members are told a



   5   Art. 32(a)(1)(A), 32(a)(2)(B), UCMJ.
   6 See United States v. Meador, 75 M.J. 682, 683 (C.G. Ct. Crim. App. 2016)
(“There is nothing in this statutory scheme that makes a determination of probable
cause by the PHO a precondition of referral to a general court-martial, nor is there
any language making the PHO’s determination binding on the SJA [staff judge
advocate] or the CA.”).
   7  See, e.g., Parker v. Levy, 417 U.S. 733, 758, 770 (1974) (Army doctor’s First
Amendment rights not violated when prosecuted for statements urging black enlisted
soldiers to refuse to serve in Vietnam due to Army’s racial bigotry, and for claiming
Special Forces personnel are “liars and thieves and killers of peasants and murderers
of women and children.”).
   8   U.S. Const. amend. V.
   9Magna Carta, Arts. 18, 19 (1215). See also Assize of Clarendon (1166), in 5 The
Founders’ Constitution 246 (Philip B. Kurland & Ralph Lerner eds., 1987).
   10 In January 1985, Sol Wachtler, the Chief Judge of the New York Court of Ap-
peals told the New York Daily News, district attorneys have so much influence on
grand juries that “by and large” they could get them to “indict a ham sandwich.” This
quip was popularized in Tom Wolfe’s 1987 novel “The Bonfire of the Vanities.” Judge
Wachtler was later himself indicted and convicted for extortion.
   11 Wood v. Georgia, 370 U.S. 375, 390 (1962). Though the Supreme Court has held
that a grand jury is not, by itself, a requirement of fundamental due process and has



                                              2
                   United States v. Lewis, NMCCA No. 201900049
                           STEPHENS, S.J. (concurring)

members panel is the worthy substitute to the Sixth Amendment right to a
jury, 12 they are provided an Article 32 Preliminary Hearing as a worthy
substitute to what may even be the minimal rigor of a grand jury. But was it
here?
    In his report, the PHO stated these specifications lacked probable cause
because, “[t]he exhibits show that alcohol did not inhibit [Cpl Alpha’s] ability
to express non-consent to the accused’s actions.” 13 But the SJA opined the
PHO was wrong because Cpl Alpha was “heavily intoxicated and vomited
prior to leaving the bar” and that she was “heavily intoxicated during sexual
acts and that she was not coherent during those acts.” 14 It appears the SJA
erroneously focused on the alcohol and the intoxication levels rather than the
applicable legal standard enunciated by our superior court. The SJA makes
no mention or discussion of United States v. Pease, 15 the case that most
clearly defines and discusses what it means to be “incapable of consenting”
and “able to make or communicate a decision.” This was a significant
oversight. The evidence showed Cpl Alpha was coherent and the PHO stated
that she was able to communicate her decision about whether she wanted to
participate. For what it is worth, I also believe these specifications lacked
probable cause from the outset. 16 This Preliminary Hearing, at least with
respect to these specifications, provided no meaningful protection for Appel-
lant and no check on the Government’s ability to expose him to felony-level
punishment.
    A PHO’s recommendation that a specification lacks probable cause should
be met with serious analysis. This is perhaps especially true in an alcohol-
facilitated sexual assault case where the charging theory is incapacity to



not incorporated it against the States, Hurtado v. California, 110 U.S. 516 (1884), all
States use either a grand jury or some type of preliminary hearing to determine
probable cause for felonies.
   12   Reid v. Covert, 354 U.S. 1, 37 n.68 (1957).
   13 Art. 32, PHO Report at 2. I do not address the PHO’s lack of detail in his re-
port. On one hand, the lack of probable cause for the specifications seems apparent
from the evidence. But a more rigorous analysis than just some minimal remarks on
the DD-457 form might have persuaded the SJA and resulted in these specifications
not being included in the referral to general court-martial.
   14   Article 34, UCMJ, Pretrial Advice Letter, dtd 9 May 2018 at 1.
   15   75 M.J. 180 (C.A.A.F. 2016).
   16 I again stress that this Court concluded a lack of factual sufficiency prior to
and separate from any consideration of probable cause or lack thereof.




                                             3
                United States v. Lewis, NMCCA No. 201900049
                        STEPHENS, S.J. (concurring)

consent due to impairment by intoxicant. The overwhelming majority of
Marine Corps and Navy adult sexual assault cases feature some level of
intoxication. But trial counsel and SJAs should be wary of presuming that
every sexual assault involving alcohol gives rise to probable cause for a
sexual assault based on incapacity due to intoxication. Here, even if we
assumed arguendo that these specifications were supported by probable
cause, it would have been by a razor-thin margin at best. Failure to closely
scrutinize the merits of charging every theory no matter its strength can
jeopardize the case as a whole.
    A conviction by the members on the alternate bodily harm theory was
well within the realm of possibility. One wonders if these convictions resulted
because the presence of alcohol overshadowed the Government’s alternate
theory. And now we are required to reverse the convictions on the specifica-
tions which, I believe, should not have been referred at all. If the Government
had taken the PHO’s determination seriously–or Article 32’s purported
raison d’etre of determining probable cause was taken seriously–there might
be a very different outcome to this case.
    Specifications lacking probable cause should not find a home on referred
charge sheets for general courts-martial. 17 Congress empowered our PHOs to
collect and review all relevant information and to make a recommendation
regarding probable cause. Commanders and their SJAs ignore these opinions
at their peril.


                                   FOR THE COURT:




                                   RODGER A. DREW, JR.
                                   Clerk of Court




   17 I also express concern that the military judge did not sua sponte enter a finding
of not guilty under R.C.M. 917 for these specifications and that the trial defense
counsel did not make such a motion.




                                          4
