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

                                Before
           F.D. MITCHELL, J.R. MCFARLANE, K.J. BRUBAKER
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         KEVIN C. CORCORAN
                     HOSPITALMAN (E-3), U.S. NAVY

                          NMCCA 201400074
                      GENERAL COURT-MARTIAL

Sentence Adjudged: 23 October 2013.
Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Naval Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: Capt Cory A. Carver, USMC.

                           23 December 2014

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

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

BRUBAKER, Judge:

     At a general court-martial, a military judge found the
appellant guilty, contrary to his pleas, of two specifications
of sexual assault in violation of Article 120(b), Uniform Code
of Military Justice, 10 U.S.C. § 920(b). The military judge
sentenced the appellant to confinement for a period of two
years, reduction to pay grade E-1, forfeiture of all pay and
allowances, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged.

    The appellant now raises seven assignments of error:

    (1) the military judge created a fatal variance when
    he changed the theory of liability for Article 120(b)
    in his special findings;

    (2) the appellant lacked notice of the alternative
    theory of liability for Article 120(b) on which the
    military judge predicated his findings of guilty;

    (3) the military judge erred when he foreclosed the
    defense from impeaching the complaining witness’s
    credibility through a prior inconsistent statement;

    (4) Specification 2 of the Charge is legally and
    factually insufficient;

    (5) the military judge erred when he relied on the
    purported ways of the world and human experience to
    reconcile the complaining witness’s blood alcohol
    content (BAC) with the testimony of witnesses;

    (6) the element under Article 120(b) of “incapable of
    consenting to the sexual act due to impairment by
    alcohol” is unconstitutionally vague; and,

    (7) the appellant’s trial was tainted by unlawful
    command influence.

     After carefully considering the record of trial and the
submissions of the parties, we find that no error materially
prejudicial to substantial rights of the appellant occurred. We
therefore affirm the findings and the approved sentence. Arts.
59(a) and 66(c), UCMJ.

                           Background

     On 22 October 2012 in Guantanamo Bay, Cuba, then-
Hospitalman Apprentice BNS, the appellant, and three other
Sailors proceeded from their barracks to one of the beaches on
base. While at the beach, BNS drank three to four cups of vodka
and orange juice brought by the appellant. The drinks were
mixed in a 16-ounce Solo cup; the vodka was not measured and BNS
described the drinks as strong.

                                2
     At around 1550, the group arrived back at the barracks.
BNS returned to her room and tried to call her husband, but was
not able to because she was too drunk and could not push the
correct buttons on the phone. She attempted to take a shower,
“fumbling” and “dropping stuff”1 while she did, and then lay down
in bed. At around 1630, the appellant entered BNS’s room.
Although BNS testified to a fragmented memory, she recalls in
“flashes”2 the appellant in her room, them having a conversation,
her realizing that she was lying back instead of sitting, and
seeing his face “like he was . . . kind of sitting on top of
[her].”3 She remembered nothing beyond this until she woke up
later naked and disoriented.

     Upon awakening, BNS located and confronted the appellant,
asking him what had happened. He responded by saying he was
sorry. BNS then, after talking to her mother, discussed the
incident with a friend and fellow Sailor who turned out to be a
sexual assault victim’s advocate. The friend, concerned about
possible testing for sexually transmitted diseases, called the
appellant to determine whether he had used a condom. The
appellant confirmed they had in fact had unprotected
intercourse. BNS was then taken to the emergency room, where
blood was drawn to determine BAC and a sexual assault forensic
examination was conducted.

     The appellant was twice interviewed by the Naval Criminal
Investigative Service (NCIS). In the first interview, the
appellant admitted to sexual activity with BNS, but contended it
was consensual. In the second, he admitted he “was not
completely honest”4 in his first statement. He said he had
removed both his and her clothing with no assistance from her
and inserted his penis into BNS’s vagina and “performed oral
sex”5 on BNS while BNS was “unresponsive” and “did not
participate in the sex.”6

     Additional facts necessary for the resolution of this case
are included below.

1
    Record at 264.
2
    Id. at 267.
3
    Id.

4
    Prosecution Exhibit 5 at 1.
5
    Id.
6
    Id.
                                  3
                            Variance

     Because the appellant’s first two contentions both purport
that a material variance occurred, we consider them together.
The appellant asserts a fatal variance occurred because the
military judge, while he found the appellant guilty of the
specifications as charged without exception or substitution,
issued special findings indicating he found him guilty under a
different theory of liability. Specifically, both
specifications charged sexual assault under Article 120(b)(3),
UCMJ: sexual acts upon a person who is incapable of consenting
to the sexual acts due to impairment by alcohol. But, the
appellant claims, the military judge’s special findings indicate
he actually found the appellant guilty under a different theory
of liability, Article 120(b)(2): sexual acts upon a person who
is asleep, unconscious, or otherwise unaware that the sexual
acts are occurring. We disagree.

     Whether there was a fatal variance is a question of law we
review de novo. United States v. Treat, 73 M.J. 331, 335
(C.A.A.F. 2014); United States v. Useche, 70 M.J. 657, 661 (N.M.
Ct.Crim.App. 2012). When defense counsel fails to object to a
purported variance at trial, we will not grant relief absent
plain error. United States v. Finch, 64 M.J. 118, 121 (C.A.A.F.
2006). To find plain error, we must find: (1) there was an
error; (2) the error was plain, that is, clear or obvious; and,
(3) the error affected substantial rights. Id.

     In this case, there was no variance. The appellant was
charged with and convicted of precisely the same conduct with no
modification to the specifications: sexually assaulting BNS by
inserting his penis and tongue into BNS’s vagina when BNS was
incapable of consenting due to impairment by alcohol. The
military judge in his special findings reiterated that he found
beyond a reasonable doubt that all elements of both offenses, as
charged, were met, including that BNS was incapable of
consenting due to impairment by alcohol and that the appellant
knew or reasonably should have known this. The findings
regarding impairment by alcohol are amply supported by the
record.

     In one of his findings of fact, the military judge states
that based on the testimony of BNS, the appellant, and the two
experts, he was satisfied beyond a reasonable doubt that BNS
“transitioned from a fragmentary black-out phase (where she may
have appeared somewhat coherent) into a passed-out phase [where
she was completely unresponsive] during the initial intercourse

                                4
with [the appellant] and prior to his inserting his tongue into
her vagina and his final insertion of his penis into her
vagina.”7 This special finding of fact is not inconsistent with
his conclusion that BNS was incapable of consenting due to
impairment from alcohol. In such circumstances, a person can be
both incapable of consenting due to impairment by alcohol and
asleep or unconscious. The fact that proof at trial
demonstrates that another theory of liability may also have been
available does not imply that a variance has occurred as long as
the Government has proven all elements of the offense as charged
and convicted beyond a reasonable doubt, which it did.

     There being no variance between charged and proven
offenses, the appellant’s assertion of lack of notice also
fails.

                         Prior Inconsistent Statement

     The appellant next asserts the military judge erred by
excluding extrinsic evidence of a prior inconsistent statement
by BNS to the sexual assault forensic examiner. We agree.

     When testifying to her “little flashes”8 of memory, BNS
stated she remembered the appellant on top of her but not
feeling anything: “I just saw his face and I felt so dizzy and
just, like my body felt heavy and numb and just, just like the
way people feel when they’ve reached that point they’re just
completely out of it. I didn’t feel his weight.”9 She testified
the next thing she remembered was waking up naked and
disoriented later that evening. On cross-examination, she
conceded that her trial testimony was that she did not remember
“anything about the penetration or anything about sex.”10 The
defense counsel, proffering that it was for purposes of
impeachment by prior inconsistent statement, asked BNS whether
she told the sexual assault forensic examiner, Lieutenant Keck,
that she remembered feeling penetration of her vagina with the
appellant’s penis. BNS responded, “I don’t remember talking
about that with him.”11


7
     Appellate Exhibit XXXVII at 7.
8
     Record at 267.
9
     Id.
10
     Id. at 317.
11
     Id. at 392.
                                      5
      During its case-in-chief, the defense called Lieutenant
Keck as a witness. When the assistant defense counsel got to
the ultimate question of what BNS told him regarding penetration
of the vagina, the Government objected on the grounds of
hearsay. The assistant defense counsel replied the evidence was
being offered not for the truth of the matter asserted, but as
impeachment evidence under MILITARY RULE OF EVIDENCE 613(b), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). The military judge stated
he was overruling the Government’s objection, but added that
what he found to be inconsistent between the two statements was
merely whether she discussed vaginal penetration with Lieutenant
Keck, not the specifics of what she told him. The military
judge ruled, accordingly, that the defense was limited to asking
Lieutenant Keck whether BNS discussed the topic of feeling
penetration with him and was not permitted to elicit specifics
of what BNS told Lieutenant Keck regarding penetration.

     Given these limitations, the assistant defense counsel was
left with but one question for Lieutenant Keck: “When you were
conducting the [sexual assault forensic] exam for [BNS], do you
recall discussing penetration of her vagina?”12 Lieutenant Keck
replied with a simple “Yes.”13 The Government declined cross-
examination and the witness was excused.

     We review a decision to exclude evidence for an abuse of
discretion. United States v. Harrow, 65 M.J. 190, 199 (C.A.A.F.
2007). For extrinsic evidence of a prior inconsistent statement
to be admissible, first, there must be an inconsistency between
trial testimony and the previous statement. United States v.
Damatta-Olivera, 37 M.J. 474, 477 (C.M.A. 1993). While a
seemingly obvious requirement, whether there is an inconsistency
is not always so clear in practice. A military judge thus has
considerable discretion to determine whether an inconsistency
exists between a witness’s trial testimony and a prior
statement. Harrow, 65 M.J. at 200. Evasiveness or inability to
recall may constitute an inconsistency. “Although an
inconsistency is logically essential for this method of
impeachment, whether testimony is inconsistent with a prior
statement is not limited to diametrically opposed answers but
may be found as well in evasive answers, inability to recall,
silence, or changes of position.” Damatta-Olivera, 37 M.J. at
478 (citations omitted).



12
     Id. at 576.
13
     Id.
                                   6
      The second requirement for admissibility of extrinsic
evidence of prior inconsistent statements is stated in MIL. R.
EVID. 613(b): the witness must be afforded an opportunity to
explain or deny the allegedly inconsistent statement and the
opposite party must be “afforded an opportunity to interrogate
the witness thereon . . . .” If the witness admits making the
inconsistent statement, extrinsic evidence is generally not
admissible. Harrow, 65 M.J. at 199. If, on the other hand, the
witness denies making the statement or equivocates, extrinsic
evidence may be admitted for the limited purpose of impeachment.
Id.

     We find that the military judge in this case erred by not
allowing the defense to elicit the contents of BNS’s statement
to Lieutenant Keck regarding penetration. First, here, as in
Harrow, “the military judge appears not to have understood that
an inability to recall or a ‘non-responsive’ answer may present
an inconsistency for purposes of M.R.E. 613.” Id. at 200. The
inconsistency was not whether BNS had a conversation with
Lieutenant Keck regarding penetration. It was whether she
perceived penetration of her vagina at the time of the assault;
the trial testimony and the proffered statement were
inconsistent on this point.

     Second, the defense counsel properly confronted BNS with
this prior statement and gave her an opportunity to explain or
rebut it. BNS’s denial that she remembered making this
statement to Lieutenant Keck was, for MIL. R. EVID. 613 purposes,
sufficient to open the door for extrinsic evidence.

     Having found error, we now assess whether there was
prejudice. This is an error of an evidentiary nature not rising
to constitutional dimension; accordingly, we apply a
nonconstitutional harmless error analysis. Id. We therefore
review de novo whether the error had a substantial influence on
the military judge’s verdict in the context of the entire case
considering the following factors: (1) the strength of the
Government’s case; (2) the strength of the defense case; (3) the
materiality of the evidence in question; and (4) the quality of
the evidence in question. Id. (citing United States v. Berry,
61 M.J. 91, 98 (C.A.A.F. 2005)).

     We find that the evidence did not have a substantial
influence on the military judge’s verdict. The Government’s
case was strong. It included a confession in which the
appellant admitted BNS was “unresponsive and did not participate
in the sex.” This was corroborated by BNS’s testimony that she

                                7
was extremely intoxicated, had fragmentary memory of the events
in question and remembered in “little flashes”14 the appellant
coming to her room, kissing her, and lying on top of her while
her body felt “heavy and numb.”15 Further, the testimony of two
experts, a forensic toxicologist and a forensic psychiatrist,
was highly corroborative of BNS’s impairment by alcohol. The
toxicologist established that BNS had a BAC of 0.09 grams per
deciliter roughly eight hours after the appellant came to BNS’s
room and some nine hours after BNS had stopped consuming
alcohol. Thus, the expert was able to conclude, at
approximately 1630, the time the military judge ultimately
concluded the appellant entered BNS’s room, BNS would have had a
BAC between 0.21 and 0.25 grams per deciliter.

     The defense case, on the other hand, consisted of evidence
regarding steps BNS had to navigate when leaving the beach and
testimony from friends of the appellant to the effect that BNS
was flirting with the appellant on the day in question and did
not appear significantly intoxicated to them while at the beach
and on the ride back to the barracks. Relative to the
Government’s case, this evidence was weak and of limited value.

     Regarding the third prong, the evidence in question was
material. Although the defense did not make a separate proffer
of Lieutenant Keck’s expected testimony, we can assume he would
have testified consistently with a Sexual Assault Forensic
Examination form he completed.16 In it, he checked “Yes” in a
block for penetration of vagina by penis and annotated, “Patient
remembers feeling penis penetration before passing out.”17 This,
however, must be taken in context with the previous page where
he provided a narrative of the “Patient’s Description of the
Assault.”18 There, Lieutenant Keck indicated BNS told him she
remembered the appellant coming to her room, but not how he got
there, she remembered her thoughts getting “fuzzy,”19 him
starting to kiss her and pushing her back onto the bed, and him

14
     Record at 267.
15
     Id.
16
  The form was marked and attached to the record as Defense Exhibit A for
identification but not admitted.
17
     DE A (FID) at 5.
18
     Id. at 4.
19
     Id.


                                      8
unzipping her sweatshirt. “She remembers feeling
‘uncomfortable’ and then she thinks she passed out. She does
not remember having sex. Patient woke up in bed naked.”20 This
is quite consistent with BNS’s ultimate testimony.

     At any rate, and turning to the final factor, there is
little doubt BNS’s memory of the events in question was
fractured and incomplete. Evidence that BNS previously told
Lieutenant Keck that she felt the appellant’s penis penetrate
her vagina before passing out would have done little to further
impugn her credibility or to harm the Government’s case. This
is particularly so given the appellant’s own statement that BNS
was initially responsive, but he inserted his penis into her
vagina and performed oral sex on her while she was unresponsive
“to see if she would respond to [him]” and ”in hopes of getting
her to participate in the sex.”21

     It also should be noted the military judge did allow some
impeachment evidence to come in: while BNS stated she did not
recall discussing feeling penetration with Lieutenant Keck,
Lieutenant Keck stated definitively they did discuss it. The
defense thus had the opportunity to and did argue that
Lieutenant Keck’s testimony called BNS’s credibility into
question.

     Considering the four factors together, we readily conclude
that the error in limiting Lieutenant Keck’s testimony did not
have a substantial influence on the verdict. Accordingly, we
find the error harmless.

            Legal and Factual Sufficiency of Specification 2

     In his next assignment of error, the appellant asserts the
evidence supporting Specification 2 of the Charge is factually
and legally insufficient. Specification 2 alleged that the
appellant committed a sexual assault in violation of Article
120(b), UCMJ, by penetrating BNS’s vulva with his tongue while
BNS was incapable of consenting due to alcohol. The appellant
argues the evidence was insufficient regarding one element of
this offense: that the appellant penetrated BNS’s vulva with his
tongue. He states the exclusive evidence of this element
consisted of his inculpatory statements that he performed “oral
sex” on BNS, which was insufficient to prove beyond a reasonable


20
     Id.
21
     PE 5 at 1.
                                   9
doubt that he penetrated BNS’s vulva with his tongue.   We
disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency of the evidence is
“whether, considering the evidence in the light most favorable
to the prosecution, any reasonable fact-finder could have found
all the essential elements beyond a reasonable doubt.” United
States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). The
test for factual sufficiency is whether “after weighing all the
evidence in the record of trial and recognizing that we did not
see or hear the witnesses as did the trial court, this court is
convinced of the appellant's guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App.
2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff'd, 64 M.J. 348 (C.A.A.F. 2007). Beyond a reasonable doubt,
however, does not mean that the evidence must be free from
conflict. Id.

     In his first statement to NCIS, the appellant stated he
initially “layed [sic] her [BNS] down on the bed and I entered
her vagina with my penis.”22 He said that he started to lose his
erection, so he “started to give her oral sex for a couple of
minutes.”23 He said she “didn’t ask for me to go down on her.”24
After this, he reinserted his penis into her vagina, but
“realized it was pretty much hopeless for me to finish and I
pulled out and sat back on her bed.”25

     In a second interview with NCIS, the appellant admitted he
“was not completely honest” in his first statement and that BNS
was in fact “unresponsive and did not participate in the sex.”26
He said he took off all of both of their clothes; she did not
assist in removing clothing and did not say anything. “At this
point I start to wonder if she still is able or wants to have
sex.”27 The appellant, nonetheless, continued by placing his

22
     PE 2 at 2.
23
     Id.
24
     Id.
25
     Id.
26
     PE 5 at 1.
27
     Id.
                               10
penis into her vagina “and began to have sex with her to see if
she would respond” to him.28 She did not. The appellant rolled
BNS on top of him and continued to have intercourse with her
while she did not participate. “At this point [BNS] was still
not engaging in the sex which was causing me to lose my
erection. I then rolled [BNS] back on her back on [sic]
performed oral sex on her in hopes of getting her to participate
in the sex. She does not respond to the oral sex. After doing
this, I then got back on top of [BNS] and inserted my penis into
her vagina.”29

     The appellant cites United States v. Hansen, 36 M.J. 599
(A.F.C.M.R. 1992) for the proposition that use of the term “oral
sex” without more is insufficient to prove penetration of the
vulva. In Hansen, the accused was convicted, contrary to his
pleas, of committing sodomy with his daughter. The accused
admitted to investigators to having “oral sex” with his
daughter, but neither the accused nor the agent was any more
specific than that in their description. His daughter never
acknowledged any relevant acts other than vaginal intercourse.
Under these circumstances, our Air Force counterparts found the
accused's admission to having had “oral sex” insufficient to
establish actual penetration because, “although appellant and
the agent may have had the correct mental impression as to the
definition of that term, it does not, per se, prove
penetration[.]” Id. at 608.

     As a panel of this Court stated in United States v. Green,
52 M.J. 803 (N.M.Ct.Crim.App. 2000), we might, under similar
circumstances, agree. “‘Oral sex’ without more, may refer to
fellatio or cunnilingus, neither of which the victim in Hansen
reported in relation to the charged conduct, and the accused in
Hansen did not indicate which act had occurred in his
admissions.” Id. at 805. But in this case, we have more. The
appellant does not just speak of engaging in oral sex with BNS,
he speaks of giving her oral sex. Further, he refers to it as
“go[ing] down on her.” He explains she was on her back and his
purpose was to try to get her to participate in sex with him, in
other words, to stimulate her. Under these circumstances, the
only reasonable interpretation is that the appellant is
admitting that he performed cunnilingus on BNS; there can be no
confusion that he may have been referring to fellatio.



28
     Id.
29
     Id.
                               11
     Furthermore, although the evidence did not specifically
address penetration of the vulva by the tongue per se, a plain,
ordinary, common sense reading of the appellant’s statements
provides circumstantial, if not direct, evidence that there was
at least some penetration of the vulva, however slight. Art.
120(g)(1)(B), UCMJ. The evidence of Specification 2 of the
charge was, accordingly, legally sufficient and we ourselves are
convinced beyond a reasonable doubt of the appellant’s guilt to
this offense.

                           Ways of the World

     The military judge, upon request by the appellant under RULE
FORCOURTS-MARTIAL 918, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), issued eight pages of special findings. In them, he
stated that he “considered all legal and competent evidence, the
applicable presumptions, the reasonable inferences to be drawn
therefrom, and the court resolved all issues of credibility.”30
The military judge then went into significant detail, including
65 special findings of fact, to support his findings of guilty
to both specifications under the charge. In the final paragraph
the military judge stated the following:

             In so finding the aforementioned facts, the court
        reviewed the entire record of trial, and also
        consulted its common sense and the court’s knowledge
        of human nature and the ways of the world. This
        allowed the court to reconcile [B.N.S.]’s BAC in light
        of the testimony of other witnesses, as well as the
        statements of [the appellant]. As such, the court
        finds, beyond a reasonable doubt, that [B.N.S.] was
        incapable of consenting due to impairment by alcohol
        when [the appellant] inserted his tongue into her
        vagina and then inserted his penis into her vagina.31

     The appellant now claims, for the first time on appeal,
that the military judge’s stated use of common sense and
knowledge of human nature and the ways of the world deprived him
of constitutionally guaranteed due process. We disagree.

     Special findings under R.C.M. 918(b) are akin to specific
findings under FEDERAL RULE OF CRIMINAL PROCEDURE 23(c). They are
“designed to rectify judicial misconceptions regarding: the
significance of a particular fact; the application of any
30
     AE XXXVII at 1.
31
     Id. at 8.
                                  12
presumption; or the appropriate legal standard.” United States
v. Falin, 43 C.M.R. 702, 704 (A.C.M.R. 1971) (internal citations
omitted). As they pertain to a military judge’s explanation of
the law she has applied, special findings “are to a bench trial
as instructions are to a trial before members.” Id. We review
questions of law, such as the substance of instructions, de
novo, United States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999).
Having applied that standard here, we find no error.

     Military judges are presumed to know the law and to follow
it absent clear evidence to the contrary. United States v.
Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007). The special
findings provide no evidence to the contrary. It has long been
recognized that fact-finders may and in fact are expected “to
use their common sense in assessing the credibility of testimony
as well as other evidence presented at trial.” United States v.
Frey, 73 M.J. 245, 250 (C.A.A.F. 2014). Similarly, “[t]he term
‘ways of the world’ refers to court members’ evaluation of lay
testimony, defenses, and witness credibility” and is generally
permissible as long as fact-finders do not “substitute their
understanding of the ‘ways of the world’ for evidence or for the
military judge's instructions[.]” Id.

     In context, the military judge’s special findings make it
clear he appropriately used common sense and knowledge of the
“ways of the world” in assessing evidence properly presented at
trial —— particularly the credibility of witnesses and whether
the appellant knew or reasonably should have known of BNS’s
incapability to consent —— as opposed to impermissibly
substituting personal knowledge or opinions for evidence
presented at trial. His special findings are scrupulously
detailed and supported by evidence presented at trial. The
evidence admitted regarding BNS’s incapability to consent due to
intoxication was strong; the military judge did, however, have
to reconcile this evidence with statements by the appellant and
others at the beach minimizing BNS’s apparent intoxication
level. In assessing the weight to give these statements, the
military judge was entitled to consult his common sense —— no
less than members would have been.

                            Vagueness

     The appellant claims Article 120(b) is unconstitutionally
vague. We review the constitutionality of a statute de novo.
United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005). Due
process requires a person have fair notice that an act is
forbidden and subject to criminal sanctions before he or she can

                               13
be prosecuted for it. United States v. Vaughan, 58 M.J. 29, 31
(C.A.A.F. 2003). As the Supreme Court has articulated, “Void
for vagueness simply means that criminal responsibility should
not attach where one could not reasonably understand that his
contemplated conduct is proscribed.” Parker v. Levy, 417 U.S.
733, 757 (1974) citations and internal quotation marks omitted).
Instead, laws must “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he may
act accordingly.” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). Courts look to multiple sources to find fair
notice, including “the [Manual for Courts-Martial], federal law,
state law, military case law, military custom and usage, and
military regulations.” Vaughn, 58 M.J. at 31 (citations
omitted). In assessing a vagueness challenge, “a statute must
of necessity be examined in light of the conduct with which the
defendant is charged.” Levy, 417 U.S. at 757 (citation
omitted).

     The relevant portion of Article 120(b) prohibits a person
from committing “a sexual act upon another person when the other
person is incapable of consenting to the sexual act due to . . .
impairment by any drug, intoxicant, or other similar substance,
and that condition is known or reasonably should be known by the
person[.]” The appellant argues the element “incapable of
consenting to the sexual act due to impairment by alcohol” is
“not sufficiently specific to inform a member of the public as
to when it would be illegal to have sex with a person who has
been drinking alcohol, because all drinking causes some level of
impairment.”32

     We disagree. We first note that the statute does not
prohibit committing a sexual act on a person who is impaired by
alcohol, but on a person who is incapable of consenting to the
sexual act due to impairment by alcohol —— a more discernible
standard. Further, the appellant’s argument ignores the
inherent notice element of Article 120(b)(3): “and that
condition is known or reasonably should be known” by the
appellant.

     But irrespective of whether a statute could be read to be
vague in some other hypothetical case, an appellant has no
standing to challenge the facial validity of a statute that
clearly applies to his conduct. United States v. McGuinness, 35
M.J. 149, 152 (C.M.A. 1992). Thus, examining the statute “in

32
     Appellant’s Brief of 11 Jun 2014 at 34.


                                        14
light of the conduct with which the defendant is charged,” Levy,
417 U.S. at 757, we have little hesitation in finding that
Article 120(b) clearly prohibited the appellant’s conduct:
penetrating BNS’s vulva with his tongue and penis while she “was

unresponsive,”33 “did not participate in the sex,”34 and was in a
“passed-out phase”35 of intoxication. Accordingly, he lacks
standing to claim that Article 120(b) is facially void for
vagueness.

                       Unlawful Command Influence

     In his final assignment of error, the appellant asserts the
military judge found but did not adequately remediate apparent
unlawful command influence (UCI) and consequently asks us to
disapprove his dishonorable discharge.

     When the issue of UCI is litigated on the record, as here,
we review the military judge's findings of fact under a clearly-
erroneous standard while we review the “question of command
influence flowing from those facts” de novo. United States v.
Wallace, 39 M.J. 284, 286 (C.M.A. 1994). Apparent UCI exists
“where an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” United States v.
Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). An appellant has the
initial burden to raise “some evidence” of unlawful command
influence. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.
1999). The defense must “show facts which, if true, constitute
unlawful command influence, and that the alleged unlawful
command influence has a logical connection to the court-martial,
in terms of its potential to cause unfairness in the
proceedings.” Id. (citations omitted). If the defense meets
its burden, the Government must then, beyond a reasonable doubt,
either: (1) disprove the predicate facts on which the allegation
of UCI is based; or (2) persuade the military judge that the
facts do not constitute UCI; or (3) prove at trial that the UCI
will not affect the proceedings. Id. at 151.




33
     PE 5 at 1.
34
     Id.
35
     AE XXXVII at 7.


                                  15
     Here, the appellant specifically avers the military judge,
in response to a defense motion to dismiss, “partially denied”36
the motion, but found that comments made by the President of the
United States on 7 May 2013 “constituted apparent [UCI].”37 The
appellant complains that while the military judge indicated he
would, as a remedy “to cure the apparent [UCI],”38 grant liberal
voir dire of the potential panel members, carefully adhere to
the liberal grant mandate, and craft a special instruction for
the members, he did not put in place any alternative remedies
once the appellant elected trial by military judge alone.
Hence, the appellant does not allege error in the initial UCI
ruling, only that the military judge erred by not putting
alternative remedies into place once the appellant elected trial
by military judge alone.39

     We find that the military judge committed no error. First,
the military judge actually ruled that as of the date of the
hearing on the motion, there was no apparent UCI. He did,
however, indicate in his findings of fact that there may have
been apparent UCI up until the Secretary of Defense issued a
memorandum on 6 August 2013 expressing his and the President’s
expectations and making “clear that no comments made by them
should be interpreted as in any way directed toward influencing
either the process or outcome of military courts-martial
regarding any offense and that the independent judgment of
everyone involved in the military justice process is what is
expected from senior leadership.”40 The military judge found
that once this was issued there no longer was an appearance of
UCI. His concern was in ensuring potential members were aware
of this guidance and able to adhere to it.

     Subsequent to this ruling, the appellant requested to
change his forum election from members with enlisted
representation to military judge alone. After a full
opportunity for voir dire, the appellant did not challenge the
military judge and knowingly and voluntarily elected trial by
military judge alone. He did not renew his UCI motion nor did
he request any alternative remedial measures.

36
     Appellant’s Brief at 39.
37
     Id.
38
     Id.
39
  The appellant does not illuminate what alternative remedies applicable to a
bench trial the military judge was expected to impose.
40
     AE XXXII at 4.
                                     16
     As stated previously, military judges are presumed to know
the law and to follow it, Erickson, 65 M.J. at 225, and there is
no evidence the military judge failed to do so. Under these
circumstances, we are satisfied that an objective, disinterested
observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of the
proceeding. Lewis, 63 M.J. at 415.

                           Conclusion

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

    Chief Judge MITCHELL and Senior Judge MCFARLANE concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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