UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                    Private First Class MITCHELL L. BRANTLEY
                            United States Army, Appellant

                                         ARMY 20150199

              Headquarters, Joint Readiness Training Center and Fort Polk
               Randall L. Fluke and Charles L. Pritchard, Military Judges
                  Colonel Jan E. Aldykiewicz, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief); Colonel Mary J. Bradley,
JA; Major Patrick J. Scudieri, JA; Captain Matthew L. Jalandoni, JA (on brief
following remand); Lieutenant Colonel Christopher D. Carrier, JA; Major Todd W.
Simpson, JA; Captain Matthew D. Bernstein, JA (on reply brief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Daniel D. Derner, JA; Captain Vincent S. Scalfani, JA (on brief); Colonel
Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Christopher
A. Clausen, JA; Captain Joshua B. Banister, JA (on brief following remand).

                                        30 November 2017
                            --------------------------------------------------
                            MEMORANDUM OPINION ON REMAND
                            --------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       Our superior court remanded this case to this Court for reconsideration in
light of United States v. Sager, 76 M.J. 158 (CAAF 2017). 1 Upon remand, we
consider what the government must prove to show that a victim is “otherwise
unaware” that the sexual conduct has occurred. See Uniform Code of Military

1
 Previously, we summarily affirmed the findings and sentence in this case. United
States v. Brantley, ARMY 20160199 (Army Ct. Crim. App. 6 Oct. 2016). On further
appeal, the Court of Appeals for the Armed Forces (CAAF) set aside our decision
and remanded the case for further reconsideration. United States v. Brantley, No.
17-0055/AR, 2017 CAAF LEXIS 548 (C.A.A.F. 1 Jun. 2017) (unpub.).
BRANTLEY—ARMY 20150199

Justice art. 120(b)(2), 10 U.S.C. §920(b)(2) (2012) [UCMJ]. Based on the
government’s unusual charging decision, and the plain language of the statute as
interpreted by Sager, we conclude that the government in this case must have proven
that the victim was not unconscious, was not asleep, but was unaware of the sexual
conduct. As this was not explained to the panel we find the instructions in this case
constituted reversible error.

       Appellant was charged with “touching the breasts of [Mrs. SR] when [he]
knew or reasonably should have known that [Mrs. SR] was otherwise unaware that
the sexual contact was occurring.” 2

      As we discuss below, this case is both similar and dissimilar to Sager. In
Sager the appellant was charged with a sexual offense while the victim was “asleep,
unconscious, or otherwise unaware” that the sexual act was occurring. In Sager,
however, the panel acquitted appellant of the sexual act while the victim was asleep
or unconscious, finding him guilty only under the theory that the sexual act
happened while the victim was “otherwise unaware.” Here, by contrast, the
government only alleged that the sexual contact happened while Mrs. SR was
“otherwise unaware.” Thus here, appellant was convicted as charged.

                                      BACKGROUND

       Mrs. SR’s daughter was an enlisted soldier in appellant’s unit. At a
residential party at the home of her daughter, Mrs. SR had told the revelers that she
had recently had breast augmentation surgery. After consuming approximately nine
shots of rum, and (apparently, mistakenly) taking the drug Klonopin, Mrs. SR
became very ill. Appellant told SR’s daughter and husband that he would stay and
care for Mrs. SR. Mrs. SR testified that after vomiting, the next thing she
remembered was the appellant straddled over her pulling her shorts to the side. She
then testified that she lost consciousness, and awoke several hours later to appellant
telling her “Don’t tell anybody what happened” and that “I’m an MP [military police
officer]” and that he would “go after” her daughter, he knew where she lived and “I
will hurt her.” Later that weekend appellant sent Mrs. SR a text message, saying
“While you were passed out, I took out your breasts and masturbated to you.” Mrs.
SR’s daughter saw the text message. She later had a text exchange with appellant
for clarification:

             [Appellant:] Hey . . .

             [Appellant:] can you tell me what’s wrong please?

2
  A panel of officer and enlisted members convicted appellant of one specification of
abusive sexual contact in violation of Article 120, UCMJ, and sentenced appellant to
a bad-conduct discharge, confinement for ninety days, and reduction to the grade of
E-1.


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BRANTLEY—ARMY 20150199


             [Daughter:] I saw what you texted my mom before she
             left.

             [Appellant:] So your mad about that . . . . I’m sorry I
             guess would be the start. Why I did it idk I don’t really
             know how to make it up to you or for yall to trust me
             again I’m just sorry for my stupid decision I made while
             you and [daughter’s husband] trusted me. . .

             [Daughter:] You can be sorry all you want. Do you know
             that is sexual assault!!! You set her back so much!

             [Daughter:] And at work you will leave me alone. Unless
             having to do with work.

             [Appellant:] Ok.

             [Daughter:] Did you do anything else to my mom while
             she was sleeping beside take her boobs out of her shirt and
             masturbate to them? She deserves to know

             [Appellant:] Nothing else happened . . . .

             [Appellant:] I feel ashamed . . .

             [Daughter:] So just that?

             [Appellant:] Yes

(spelling and ellipses in original). At trial, appellant was asked whether Mrs. SR
was “unconscious.” Appellant responded:

             A. She was always restless. It was never passed out, like
             as a faint or her body was still. She was restless the whole
             time.

             ...

             A. Unconscious, I don’t know. Restless, yes.




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BRANTLEY—ARMY 20150199

                              LAW AND DISCUSSION

      Appellant was charged with touching the breast of Mrs. SR while she was
“otherwise unaware” the contact was happening. We first discuss what the phrase
“otherwise unaware” means in light of Sager. We next address whether the military
judge properly instructed the panel.

          A. When is a victim “otherwise unaware” of the sexual contact?

        In Sager, the CAAF made clear that “otherwise unaware” is a theory of
liability that is separate from when the victim of a sexual assault is “asleep” or
“unconscious.” 76 M.J. at 162. Nonetheless, the parties disagree as to what it
means to be “otherwise unaware” of the sexual contact.

       The government argues that “otherwise unaware,” while being a separate
theory of liability, nonetheless incorporates a sleeping or unconscious victim. The
government argues that just as all sleeping victims are also unconscious, all
unconscious victims are also otherwise unaware. Or, as the government analogizes,
all squares are rectangles but not all rectangles are squares. This is the “Russian
nesting doll” theory where each theory of liability in the statute encapsulates the
former.

       Appellant, in his brief, sharply disagrees. Appellant argues that the statute’s
use of the word “otherwise” in “otherwise unaware” means the victim is unaware but
not sleeping or unconscious. Under appellant’s theory, the government can only
prove a victim is “otherwise unaware” if the government proves: (1) that the victim
is unaware of the sexual contact; (2) the victim is not asleep; and (3) the victim is
not unconscious. Under this “Goldilocks” theory, the government must get the
evidence just right. If the government proves too much (e.g. proving that the
unaware victim was also unconscious), then the government has overproven their
case and has disproven that the victim was otherwise unaware.

       While we find friction in the reasoning no matter which way we turn, we find
appellant has the better argument given our superior court’s decision in Sager.
The government’s nesting doll theory essentially reads the word “otherwise” out of
the statute. It is possible, as the government argues, that every sleeping victim is
also an unconscious victim. It also seems almost certain that every unconscious
victim is also an unaware victim. However, it is an odd turn of phrase to say that
every unconscious victim is an otherwise unaware victim. In Sager the CAAF
adopted a definition of “otherwise” as meaning in “in a different way or manner.”
76 M.J. at 162. Read in context this means that “otherwise unaware” means a victim




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BRANTLEY—ARMY 20150199

who is unaware that the sexual contact is taking place for reasons different than the
victim being asleep or unconscious. 3

                                   B. Instructions

       Because of the government’s charging decision, the military judge modified
the standard instruction. The relevant part of the given instruction was as follows:

             [T]he accused committed sexual contact upon Mrs. [SR] to
             wit: touching her breast; and

             [] that the accused did so when he knew or reasonably
             should have known that Mrs. [SR] was otherwise unaware
             that sexual contact was occurring.



3
  We see “friction” in this result because at first blush it seems odd that the
government could fail to meet their burden of proof that the victim was “otherwise
unaware” by proving that the victim was so unaware as to be in a state of
unconsciousness. While odd, it is not so odd as to “lead[] to an absurd result” such
that we could ignore the plain language of the statute. United States v. Schell, 72
M.J. 339, 343 (C.A.A.F. 2013) (citing United States v. King, 71 M.J. 50, 52
(C.A.A.F. 2012)). Additionally, the government was not required to allege a single
theory of liability. While writing for the dissent in Sager, Judge Stucky nonetheless
points out that “we have long held that ‘military criminal practice requires neither
unanimous panel members, nor panel agreement on one theory of liability, as long as
two-thirds of the panel members agree that the government has proven all the
elements of the offense.’” Sager, 76 M.J. at 163 (Stucky, J. dissenting) (quoting
United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007)). Had the government
alleged that Mrs. SR was “asleep, unconscious, or otherwise unaware” of the sexual
contact the panel could have returned a guilty verdict and avoided the issue we now
address on appeal. While Judge Stucky was writing in dissent, it was not on a point
of law that the majority opinion directly addressed, contradicted, or in which they
overruled their prior decisions.

Consider, for example, the three theories of liability in a larceny offense. See UCMJ
art. 121. The word “steal” includes a “taking,” “withholding” or “obtaining” theory
of liability. If, however, the government charges only a single theory (e.g. a
“taking”) they cannot complain on appeal if the evidence supported a different
theory that they could have alleged (by following the model specification), but did
not. Accordingly, any absurdity in the result is caused by the government’s charging
decision in this case, not the plain language of the statute.




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BRANTLEY—ARMY 20150199

       With the appellate hindsight provided by Sager the instruction given in this
case has obvious problems. The instruction did not mention (as it was not charged)
what to do if the panel found that Mrs. SR was asleep or unconscious. More
importantly, by not mentioning “asleep” or “unconscious” the phrase “otherwise
unaware” was without context. The word “otherwise” informs the panel member
that “unaware” is to be understood in reference to some other standard (e.g. asleep
or unconscious). But by not mentioning sleeping or unconscious victims the word
“otherwise” has no reference point and cannot be given its normal meaning.

       Finding error, we test for harmlessness. 4 United States v. Davis, 76 M.J. 224,
229 (C.A.A.F. 2017) (citations omitted). As we see no constitutional issues “at
play” we test for non-constitutional error. See United States v. Medina, 69 M.J. 462,
465 (CAAF 2011). “[T]he test for harmlessness is whether the instructional error
had ‘substantial influence’ on the findings.” United States v. Gibson, 58 M.J. 1, 7
(C.A.A.F. 2003). “If it did, or if we are left in grave doubt, the conviction cannot
stand.’” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

       We review de novo the issue whether the error was harmless. See United
States v. Pablo, 53 M.J. 356, 359 (C.A.A.F. 2000). The Government has the burden
of persuasion. Id. We cannot find the error to be harmless.

       As we’ve interpreted Sager, an “otherwise unaware” victim is a victim who is
not asleep, not unconscious, but is nonetheless unaware of the sexual contact in
question.

      A reasonable panel member could have found that Mrs. SR was asleep when
she was assaulted by appellant. A reasonable panel member could have found that
Mrs. SR was, as she herself testified, unconscious when she was assaulted by
appellant. A reasonable panel member also could have concluded, given appellant’s
testimony, that Mrs. SR was otherwise unaware that the sexual contact was
happening.

      This leaves us with an unusual problem. While each theory above is
reasonable and, if proven beyond a reasonable doubt, would result in a conviction of


4
  After being provided the initial opportunity outside the presence of the members to
discuss the instructions, the defense stated that they had “no objection” to the
instructions. This at least forfeited, but likely waived, the instructional error at
issue. See United States v. Swift, 76 M.J. 210, 218 (C.A.A.F. 2017) (“[A]s a general
proposition of law, ‘no objection’ constitutes an affirmative waiver of the right or
admission at issue.”). However, we note that we too did not identify the
instructional error during our initial review of the case. Accordingly, and especially
given the non-standard charging decision, we exercise our Article 66(c), UCMJ,
authority to notice the forfeited or waived error.


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BRANTLEY—ARMY 20150199

Article 120(d), UCMJ, only one theory—that the victim was “otherwise unaware”—
was charged. We may not affirm a conviction based on an uncharged theory of
liability. United States v. Bennitt, 74 M.J. 125, 128 (C.A.A.F. 2015) (citing United
States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999). While we conclude that there is
legally and factually sufficient evidence that Mrs. SR was otherwise unaware of the
sexual contact, we are not convinced that the panel convicted appellant to the
exclusion of the other two theories of liability not charged. Accordingly, we find
the instructional error had a substantial influence on the findings.

                                  CONCLUSION

      The finding and sentence are SET ASIDE. A retrial is authorized.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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