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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JOACHIM L. LOPEZ
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201300394
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 9 July 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding Officer, 7th Marine
Regiment (Rear), 1st Marine Division, Marine Corps Air
Ground Combat Center, Twentynine Palms, CA.
Staff Judge Advocate's Recommendation: LtCol D.P. Harvey,
USMC.
For Appellant: CDR Suzanne Lachelier, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; LCDR Keith B.
Lofland, JAGC, USN.

                              22 July 2014

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

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, in accordance with his pleas, of one
specification of abusive sexual contact, and seven
specifications of assault, in violation of Articles 120 and 128
of the Uniform Code of Military Justice, §§ 10 U.S.C. 920 and
928. The military judge sentenced the appellant to reduction to
pay grade E-1, 12 months’ confinement, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the punitive discharge, ordered the
sentence executed. In accordance with the pretrial agreement
(PTA), the CA suspended all confinement in excess of 180 days.

     The appellant submits the following assignments of error:
(1) that his guilty plea to abusive sexual contact was legally
and factually insufficient; and (2) that there was an
unreasonable multiplication of charges. After careful
consideration of the appellant's assignments of error, the
record of trial, and the pleadings of the parties, we find
partial merit in the second assignment of error, for a reason
different than that advanced by the appellant, and will grant
relief in our decretal paragraph.

     After taking corrective action, we conclude that the
findings and the reassessed sentence are correct in law and
fact, and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.

                           Background

     On 3 November 2012, the appellant and his wife attended a
birthday celebration for their neighbor, MM, at her home aboard
Twentynine Palms, California. MM and her husband lived in the
house behind the appellant’s home; MM and the appellant’s wife
had become friends while the appellant was deployed.

     During the party the appellant drank heavily and became
intoxicated. Sometime thereafter, the appellant noticed another
female guest, RR, leave the gathering in the garage and go into
the main house. The appellant followed RR into the house, and
up the stairs. While on the stairs the appellant grabbed RR’s
buttocks. RR responded by slapping the appellant’s hand away
and told the appellant not to touch her. After the incident the
appellant returned to the gathering in the garage.



                                2
     Later, the appellant noticed MM leaving the garage,
whereupon he followed her into the house, up the stairs, and
into a bedroom. Once there, the appellant grabbed MM’s face
with his hands and kissed her on the mouth. MM pushed the
appellant off and told him to stop. “Immediately after” that,
the appellant grabbed MM’s face in order to kiss her again.
Prosecution Exhibit 1 at 3. However, she pushed him away and
told him to stop. MM then “immediately walked past [the
appellant] to the door of the bedroom.” Id. As she passed, the
appellant grabbed her buttocks.

     After MM exited the bedroom, the appellant followed her to
the top of the stairs, whereupon he reached under her dress and
touched her vaginal area through her clothing. MM again pushed
the appellant away, and told him not to touch her.

     Later that evening, the appellant noticed MM sitting in the
garage close to the appellant’s wife. The appellant then sat
between them, placed his hand on MM’s shoulder, and then slid
his arm down so as to again touch MM’s buttocks. When MM moved
away from him, the appellant moved his arm so that he could rub
MM’s thigh with the back of his hand. This caused MM to get up
and move away from the appellant.

     As the appellant and his wife were leaving the party, MM
hugged the appellant’s wife goodbye. The appellant then stepped
up to MM and also gave her a hug. While doing so the appellant
reached down and grabbed MM’s buttocks.

     At trial, the appellant’s explained to the military judge
that due to his voluntary intoxication, he had little or no
memory about the events that formed the basis of the charges
against him. Nonetheless, based upon his limited memory, and
his review of the NCIS investigation, which included statements
from both RR and MM, he was convinced of his guilt. The
appellant also told the military judge that his level of
intoxication was not sufficient to cause him to lose control of
his actions. More specifically, he said that he intended to
commit the acts and that when he committed the Article 120
offense he had “the specific intent to arouse [his] own sexual
desires.” Record at 46-47.

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     Additional facts necessary to resolve the assigned errors
are included herein.

                        Providence of the Pleas

     The appellant contends that the military judge erred in
accepting his plea to abusive sexual contact, because he was
intoxicated and did not have the specific intent to commit the
crime.1 We disagree.

     A guilty plea will be rejected on appeal only where the
record of trial shows a substantial basis in law or fact for
questioning the plea. United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008). We review the military judge’s decision to
accept the appellant’s plea of guilty for an abuse of
discretion. Id. If “either during the plea inquiry or
thereafter . . . circumstances raise a possible defense, a
military judge has a duty to inquire further to resolve the
apparent inconsistency.” United States v. Phillippe, 63 M.J.
307, 310-11 (C.A.A.F. 2006). This inquiry should include a
concise explanation of the defense and “[o]nly after the
military judge [makes] this inquiry can he then determine
whether the apparent inconsistency or ambiguity has been
resolved.” Id. at 310; United States v. Pinero, 60 M.J. 31, 34
(C.A.A.F. 2004).

      Voluntary intoxication is not a defense, but may negate the
specific intent required for some offenses. United States v.
Peterson, 47 M.J. 231, 233 (C.A.A.F. 1997); see RULE FOR COURTS-
MARTIAL 916(l)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
The potential issue of voluntary intoxication does not arise
simply because the appellant was drinking or was even
intoxicated. In order for voluntary intoxication to be at
issue, “the intoxication must be to such a degree that the
1
  The appellant phrased his first assignment of error as a question of legal
and factual sufficiency. However, “When an accused pleads guilty, there is
no requirement that the government establish the factual predicate for the
plea.” United States v. Ferguson, 68 M.J. 431, 434 (C.A.A.F. 2010) (citation
omitted). “The factual predicate is sufficiently established if the factual
circumstances as revealed by the accused himself objectively support that
plea.” Id. (citation and internal quotation marks omitted). Accordingly, we
review whether the military judge abused his discretion by accepting the
appellant’s guilty plea to abusive sexual contact.
                                     4
accused's mental faculties are so impaired that a specific
intent cannot be formed.” United States v. Yandle, 34 M.J. 890,
892 (N.M.C.M.R. 1992) (citation omitted). In ascertaining the
effects of intoxication on an appellant pleading guilty, courts
give weight to an accused's words and actions, as recounted by
both the appellant and other witnesses. See United States v.
Lacy, 27 C.M.R. 238, 240 (C.M.A. 1959); United States v. Haynes,
29 M.J. 610, 612 (A.C.M.R. 1989). “Frequently, as here, the
conduct of an accused is sufficiently focused and directed so as
to amply demonstrate a particular mens rea or other state of
mind.” Peterson, 47 M.J. at 234 (citations omitted).

     In this case, the providence inquiry reveals that the
appellant was intoxicated at the time he touched MM’s vaginal
area, however both the providence inquiry and the stipulation of
fact show that his conduct was very focused and clearly directed
at satisfying his sexual desires. He had the presence of mind
to realize that MM would be vulnerable to his advances when she
left the group and went into the house alone. He had the
coordination needed to follow her upstairs, enter the bedroom,
and grab her face and kiss her on the mouth. When those
advances were rejected he stayed focused on his desires by first
grabbing her buttocks, and then following her to the stairs in
order to commit the abusive sexual contact. Based on these
facts, we find that the military judge did not abuse his
discretion by accepting the appellant’s guilty plea.

                                     Multiplicity

     The appellant next contends that Specifications 1-4 and 6-8
of Charge II2 are an “unreasonable multiplication of charges” as
they all arose in “one course of conduct.” Appellant’s Brief of
16 Dec 2013 at 39-40. In that Specification 1 of Charge II

2
  The appellant was found guilty of Charge II, Assault Consummated by a
Battery, in violation of Article 128, UCMJ:

     Specification   1:   Grabbing   RR on the buttocks with his hand;
     Specification   2:   Grabbing   MM’s face and kissing her;
     Specification   3:   Grabbing   MM’s face with his hands;
     Specification   4:   Grabbing   MM’s buttocks with his hand;
     Specification   6:   Touching   MM’s buttocks with his hand;
     Specification   7:   Touching   MM’s thigh with his hand;
     Specification   8:   Grabbing   MM’s buttocks with his hand.
                                           5
involves a different victim than the other specifications, we
find that portion of the appellant’s argument without merit.
See United States v. Parker, 38 C.M.R. 343 (C.M.A. 1968). We
also find that Specifications 6, 7, and 8 were all based on
distinct acts, separate in time from the other assaults.
Accordingly, that portion of the appellant’s argument is also
without merit. See United States v. Flynn, 28 M.J. 218, 220-21
(C.M.A. 1989) (holding that it was proper to charge multiple
assaults when there was a lapse of time between the acts).
However, we agree that the military judge erred by accepting the
appellant’s pleas to Specifications 2 through 4 of Charge II, in
that all three specifications dealt with but one assault.

     Whether a particular course-of-conduct involves one or more
distinct offenses under a single statute depends on Congress'
intent. Sanabria v. United States, 437 U.S. 54, 70 (1978);
United States v. Neblock, 45 M.J. 191, 197 (C.A.A.F. 1996).
With respect to assault, our superior Court stated “when
Congress enacted Article 128, it did not intend that, in a
single altercation between two people, each blow might be
separately charged as an assault.” United States v. Morris, 18
M.J. 450, 450 (C.M.A. 1984); see also United States v. Mayberry,
72 M.J. 467, 467068 (C.A.A.F. 2013) (summary disposition)
(merging aggravated sexual assault specifications based on the
same sexual act). Accordingly, we conclude that multiple acts
of unlawfully touching the same person in a single,
uninterrupted altercation, united in time, circumstance, and
impulse should not be the basis for multiple charges of assault.
Id.

     In this case, the Government stipulated, as fact, that the
touching that formed the basis for Specification 3 (grabbing
MM’s face and kissing her) occurred “[i]mmediately after” the
touching and kissing that formed the basis for Specification 2
(grabbing MM’s face a second time). PE 1 at 3. Moreover, the
Government also stipulated that the acts charged in
Specification 4 (grabbing MM’s buttocks as she walked away)
occurred “immediately” after the acts charged in Specification
3. Id. Given these facts, we find that Specifications 2, 3,
and 4 of Charge II are multiplicious. Morris, 18 M.J. at 451.


                                6
We will provide relief in the form of consolidation and sentence
reassessment in our decretal paragraph.

                                Conclusion

     Specifications 2, 3, and 4 under Charge II are hereby
consolidated into a single Specification to read as follows:

     Specification 2: In that Lance Corporal Joachim l.
     Lopez, U.S. Marine Corps, on active duty, did, at or
     near Marine Corps Air Ground Combat Center Twentynine
     Palms, CA, on or about 3 November 2012, unlawfully
     grab MM on the face with his hands and kiss her,
     unlawfully grab MM’s face a second time, and
     unlawfully grab MM’s buttocks with his hand.

     With these modifications, we affirm the findings.3 Based
upon our action on the findings, we have reassessed the sentence
under the principles contained in United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006). Having done so, we conclude that the
adjudged sentence for the remaining offenses would have been at
least the same as that adjudged by the military judge and
approved by the CA. Accordingly, we affirm the sentence as
approved by the CA.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




3
  We need not dismiss those specifications which are incorporated into
another specification. United States v. Sorrell, 23 M.J. 122 (C.M.A. 1986).


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