                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                UNITED STATES

                                                            v.

                                          Airman SEAN R. TAYLOR
                                            United States Air Force

                                                     ACM 38247

                                                    30 April 2014

              Sentence adjudged 24 November 2012 by GCM convened at Sheppard Air
              Force Base, Texas. Military Judge: J. Wesley Moore.

              Approved Sentence: Dishonorable discharge, confinement for 5 years,
              forfeiture of all pay and allowances, and reduction to E-1.

              Appellate Counsel for the Appellant: Captain Christopher D. James.

              Appellate Counsel for the United States: Colonel Don M. Christensen;
              Lieutenant Colonel C. Taylor Smith; Captain Richard J. Schrider; and
              Gerald R. Bruce, Esquire.

                                                         Before

                                        ROAN, HARNEY, and HECKER
                                          Appellate Military Judges

                                           OPINION OF THE COURT

                           This opinion is subject to editorial correction before final release.



HECKER, Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of attempted wrongful sexual contact, aggravated sexual assault,
forcible sodomy, burglary, and unlawful entry, in violation of Articles 80, 120, 129, and
134, UCMJ, 10 U.S.C. §§ 880, 920, 929, 934.1 The approved and adjudged sentence
consisted of a dishonorable discharge, confinement for 5 years, forfeiture of all pay and

1
    The appellant was acquitted of a second specification of burglary.
allowances, and reduction to E-1. The appellant raises four issues for our consideration:
(1) Whether the evidence is legally and factually sufficient to sustain the appellant’s
conviction for aggravated sexual assault where the evidence did not show beyond a
reasonable doubt that the victim was substantially incapacitated; (2) Whether the
evidence is legally and factually sufficient to sustain the appellant’s conviction for
forcible sodomy where no evidence of penile penetration was presented; (3) Whether the
military judge committed plain error by admitting the contents of a text message sent to
the victim by a friend of the appellant; and (4) Whether trial defense counsel provided
ineffective assistance of counsel when they failed to file a motion to compel a toxicology
expert and when they allowed the appellant to concede his guilt during his unsworn
statement. Finding no error materially prejudicial to the substantial rights of the
appellant, we affirm.

                                                   Background

       The charges in this case stemmed from the appellant’s contact with two women
during December 2010, six months after he entered active duty. The 19-year-old
appellant went uninvited into the unlocked home of MR, a friend’s mother, who was also
an active duty Army Master Sergeant. He got under the covers of her bed while she was
sleeping, woke her up, and tried to convince her to have sexual intercourse with him
while he tried to touch her breasts. MR used her hands to keep him from touching her
and told him to leave the bedroom. The appellant eventually did so, but he returned and
tried again. MR testified that she was angry with him and found his actions irritating.
For this incident, the appellant was convicted of attempted wrongful sexual contact and
unlawful entry.

       That same month, the appellant, a mutual acquaintance, and several others went to
the apartment of CL, a 19-year-old civilian woman. The group consumed alcohol and
then went to a local nightclub. After CL repeatedly vomited at the nightclub due to her
alcohol consumption, her girlfriends brought her back to her apartment where she fell
asleep in her bed. The rest of the group also returned to her apartment. Later that night,
the appellant entered her room and engaged in sexual activity with her. For this incident,
the appellant was convicted of aggravated sexual assault, forcible sodomy, burglary, and
unlawful entry.2

                                         Sufficiency of the Evidence

      The appellant contends the evidence is factually and legally insufficient to sustain
his conviction for aggravated sexual assault against CL because the evidence did not
show beyond a reasonable doubt that CL was substantially incapacitated at the time of

2
    The burglary and unlawful entry specifications were merged for sentencing purposes.




                                                          2                               ACM 38247
their sexual encounter. He also argues the evidence is similarly insufficient to convict
him of forcible sodomy as no evidence was presented that the appellant’s penis
penetrated CL’s anus. We disagree with both contentions.

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having observed the witnesses, [we are]
convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, impartial
look at the evidence, [applying] neither a presumption of innocence nor a presumption of
guilt [to] make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” 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, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324). “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). Our assessment of legal
sufficiency is “limited to the evidence produced at trial.” United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).

       As charged here, the Government’s burden of proof for the aggravated sexual
assault charge was to prove by legal and competent evidence, beyond a reasonable doubt,
(1) that the accused engaged in sexual intercourse with CL, and (2) he did so when CL
was substantially incapacitated. See Manual for Courts-Martial, United States (MCM),
Part IV, ¶ 45.a.(c)(2) (2008 ed.). “Substantially incapacitated” is defined as:

      [T]hat level of mental impairment due to consumption of alcohol, drugs, or
      similar substance; while asleep or unconscious; or for other reasons; which
      rendered the alleged victim unable to appraise the nature of the sexual
      conduct at issue, unable to physically communicate unwillingness to
      engage in the sexual conduct at issue, or otherwise unable to make or
      communicate competent decisions.

Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, ¶ 3-45-5
(1 January 2010). Here, the Government was also required to prove beyond a reasonable
doubt that CL did not consent to the sexual intercourse. For the sodomy specification,
the Government was required to prove beyond a reasonable doubt that the appellant
inserted his penis into CL’s anus and did so by force and without her consent. See MCM,
Part IV, ¶ 51.b.(1)-(4).


                                             3                                   ACM 38247
       In addition to the testimony of CL, the Government presented testimony from
several of the individuals who were at the apartment and nightclub with her and the
appellant. All the witnesses were in their late teens at the time of the incident and most
knew each other from their time in high school together in Wichita Falls, Texas. The
group included two of CL’s close girlfriends and a male friend. Those three knew the
appellant as a fellow classmate from junior and senior high school. CL also invited a
male friend, TG, whom she had known for a short time. TG brought along the appellant,
a good friend of his from high school. CL had moved into town shortly before her senior
year in high school but did not recall knowing or meeting the appellant while they were
in school together.

        On 23 December 2010, the group met at CL’s studio apartment in order to drink
alcohol before going to a local nightclub. CL was described as “pretty drunk” while at
the apartment. None of the witnesses saw CL and the appellant talking or engaging in
any flirtatious or romantic behavior any time that evening.

        CL testified that she felt drunk but not sick when leaving her apartment, but began
to feel sick soon after the group arrived at the nightclub. She recalled alternating between
dancing (with individuals other than the appellant) and vomiting in the bathroom multiple
times. Several of the other witnesses testified that CL had to be held up at times so she
could continue dancing. Her friends later found CL on the floor of the bathroom,
repeatedly vomiting. The appellant was standing nearby when one of the friends
announced this fact to the larger group.

       Several of the group picked CL up from the bathroom floor, helped her out of the
nightclub, and placed her in a car. Her two girlfriends drove her home, while she sat in
the car with her head between her legs. Upon arriving home, CL vomited by the curb.
The two young women helped CL up the stairs to her apartment and removed her clothes
because she was unable to do so herself. They put shorts and a shirt on her while she lay
motionless with her eyes closed and then placed her in the bed (which was in a corner of
the main room of the apartment and visible to those inside it). One of the friends testified
that CL was the most intoxicated that she had ever seen her.

        According to her testimony, CL’s memory of the evening is spotty. She recalls
her friends retrieving her from the bathroom floor, helping her walk out of the club, and
putting her into a car. Her next memory is arriving at her apartment and vomiting outside
the car door. She does not clearly recall how she got into her apartment, but remembers
her two girlfriends changing her out of her clothes and placing her on her bed. She also
recalls acquiescing when one of the friends asked if people could come to the apartment.

      A short time later, the men, including the appellant, returned to the apartment.
Witnesses said CL was sleeping or unconscious on the bed at this time. At one point, the


                                             4                                    ACM 38247
appellant and TG sat on the bed near CL and TG saw the appellant touch CL’s arm or
shoulder while she lay unresponsive. CL’s two girlfriends also saw this and became
uncomfortable because CL was passed out and they did not know the appellant. Another
of the men told the appellant to “chill out” and stop what he was doing. Although the
appellant protested that he was “helping her,” he did stop.

       Eventually, the appellant and TG left the apartment. TG testified that CL was still
lying motionless in the bed when he left. The last individual left in CL’s apartment was
LS, her close girlfriend, who testified that she wanted to be the last to leave because the
appellant’s behavior that night was “creeping [her] out.” When she left, LS testified that
CL was “passed out” in the bed and unable to take care of herself. Because she did not
have a key to the apartment, LS was unable to lock the door behind her.

        Meanwhile, while the appellant was driving TG home, he indicated his belief that
CL was interested in him, saying, “Dude, she wants me,” and that he wanted to “bang”
her. TG testified that he jokingly responded, “No, dude, she’s obviously into me.” When
the appellant said he was going to go back to CL’s apartment and check on her, TG told
him that was not a good idea. Although the appellant told TG he would “probably just go
home,” TG texted CL a message that told her to “lock her door.” TG testified that he did
this as a precaution because he did not want the appellant returning to the apartment and
getting into a confrontation with CL’s male friend if he was still there and even if the
male friend was not there, it still would not have been “good” for the appellant to be
alone in the apartment with her.

        CL testified that her first memory after she agreed that the others could return to
her apartment was awakening and seeing the appellant sitting on her bed. CL testified
that she felt “very groggy” and “still felt sick.” She then recalls “com[ing] back into
consciousness [and] feeling a lot of discomfort down in [her] vaginal area” and “waking
up to [the appellant] having sex with [her].” CL testified that she did not consent to this
sexual intercourse and that she would not have had this type of sexual contact with
anyone after having been as sick as she was that night. When asked if she did anything at
that time to communicate to the appellant that she did not want to have sex, she testified
that she never told the appellant “no,” but she did tell him that she was having her
menstrual cycle as that “was the only thing [she] could think of to get across that this is
not what [she] was wanting to happen” and it “was not okay with [her].” While the
appellant was on top of her, she felt herself being anally penetrated. CL explained that
she still felt very sick and was very confused, and could not fully understand how this
situation had come about. After she passed out again, CL later re-awoke and became
aware that she was on top of the appellant but did not recall doing anything to put herself
in that position.

       CL passed out again and awoke later. She saw light coming through the window
and told the appellant he needed to leave. Her next memory was awakening at 0600


                                             5                                   ACM 38247
hours and noticing that the appellant was gone. Still feeling sick, she went back to sleep
for several hours. At some point that morning, she saw the text on her phone from TG
which told her to lock her doors. She soon told her two girlfriends about the incident, but
did not contact law enforcement until her parents became aware of the situation a few
weeks later.

       As he did at trial, the appellant argues there was insufficient evidence to prove CL
was substantially incapacitated. The defense conceded that CL was “tipsy” and “may
have even been drunk,” but that whatever alcohol she had in her system would have
dissipated by the time of the sexual activity, due to the passage of time and her vomiting.
Furthermore, the defense argues that (1) CL’s awareness of the appellant’s presence in
her bedroom, and (2) their sexual activity demonstrate she was not substantially
incapacitated, as did her contact with her friends early the following morning.

        Having considered the entirety of the evidence presented at trial, we find the
evidence factually and legally sufficient to sustain the appellant’s convictions for
committing an aggravated sexual assault on CL and forcibly sodomizing her. The
evidence adduced at trial is sufficient to prove that CL was “substantially incapacitated”
when the appellant began to engage in sexual intercourse with her. Based on eyewitness
testimony, CL was extremely intoxicated that night, and unable to even care for her own
basic needs. Moreover, her testimony showed continued mental impairment throughout
the assault as she continued in and out of consciousness, unable to fully understand the
situation. This incapacitation and mental impairment continued through CL being
sodomized. Therefore, we similarly find the evidence factually and legally sufficient to
convict the appellant of forcible sodomy. Although CL did not explicitly testify that it
was the appellant’s penis that penetrated her anus, based on her testimony and description
of the incident, considering her mental impairment at the time, we are convinced that this
is what occurred. We ourselves are convinced of the appellant’s guilt of both offenses
beyond a reasonable doubt. We also find that a reasonable factfinder could have found all
the essential elements of these offenses beyond a reasonable doubt.

                              Admission of a Text Message

       As described above, the appellant’s good friend, TG, texted CL after he and the
appellant left her apartment, telling her to “lock her door” but CL did not see this
message until the next morning. The Government referred to this text message in its
opening statement, but prior to it being admitted at trial, the defense objected during an
Article 39(a), UCMJ, 10 U.S.C. § 839(a), session contending it was inadmissible hearsay.
Trial counsel claimed it was not hearsay as it was not being offered for the truth of the
matter asserted within it and, if it was hearsay, then the “present sense impression”
hearsay exception applied to the situation. The military judge overruled the defense
objection after he concluded this text was neither a statement of fact nor an assertion and
therefore did not constitute hearsay.


                                             6                                   ACM 38247
       On appeal, the appellant contends the military judge committed plain error when
he found this evidence relevant to the issue of whether the appellant engaged in a sexual
act with CL while she was substantially incapacitated. He further argues that even if such
evidence is relevant, it should have been excluded pursuant to Mil. R. Evid. 403.

        Because the trial defense counsel only objected on hearsay (and not relevancy or
other grounds), we review this situation for plain error. United States v. Datz, 61 M.J. 37,
42 (C.A.A.F. 2005) (a party must “provide sufficient argument to make known to the
military judge the basis of his objection and, where necessary to support an informed
ruling, the theory behind the objection”); see also Mil. R. Evid. 103(a)(1) (“[A] timely
objection [must be made] . . . stating the specific ground of objection, if the specific
ground was not apparent from the context.”). “Where an appellant has not preserved an
objection to evidence by making a timely [and adequate] objection, that error will be
forfeited in the absence of plain error.” United States v. Brooks, 64 M.J. 325, 328
(C.A.A.F. 2007) (citing Mil. R. Evid. 103(d)). The appellant has the burden of
establishing (1) an error, that was (2) clear or obvious, and (3) resulted in material
prejudice to his substantial rights. Brooks, 64 M.J. at 328.

      The appellant concedes that his conversation with TG after leaving CL’s
apartment would be relevant at the trial, but argues that TG’s later communication (via
text message) with CL is not relevant.3 He also argues that he was prejudiced because
the panel members were “lured into” convicting the appellant because his best friend
thought he was guilty.

       Relevant evidence is “any evidence that has any tendency to make the existence of
any fact that is of consequence . . . more probable or less probable than it would be
without the evidence.” Mil. R. Evid. 401. Generally, relevant evidence is admissible and
evidence that is not relevant is not admissible. Mil. R. Evid. 402. The relevance standard
is a low threshold. United States v. Reece, 25 M.J. 93, 95 (C.M.A. 1987). Relevant
evidence may be excluded if “its probative value is substantially outweighed by the
danger of unfair prejudice.” Mil. R. Evid. 403.

       Here, we do not find that the military judge committed plain error by failing to
exclude the text message as irrelevant or as unduly prejudicial under Mil. R. Evid. 403.
Two issues for the trier of fact in this case were how the appellant ended up back in CL’s
apartment and his motive for engaging in sexual activity with her. Evidence of TG’s
reaction to the appellant’s comments about CL and his plans for her was relevant to these
determinations. We further find that the probative value of this evidence is not

3
  On appeal, the appellant is not arguing that the military judge erred by finding the text message communication to
be non-hearsay.




                                                         7                                             ACM 38247
substantially outweighed by the danger of unfair prejudice. As such, the military judge
did not commit plain error in admitting it.

                            Ineffective Assistance of Counsel

       The appellant argues trial defense counsel’s performance amounted to ineffective
assistance of counsel. Specifically, the appellant claims his counsel were ineffective for
failing to compel the Government to provide him with an expert in toxicology and for
“allow[ing him] to concede guilt during his unsworn statement.” After reviewing the
record of trial, we find no merit to this argument.

       We review claims of ineffective assistance of counsel de novo, applying the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See United
States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). Our superior court has applied this
standard to military courts-martial, noting that “[i]n order to prevail on a claim of
ineffective assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at
687; United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). The deficiency prong
requires that an appellant show the performance of counsel fell below an objective
standard of reasonableness, according to the prevailing standards of the profession.
Strickland, 466 U.S. at 688. The prejudice prong requires a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In conducting this analysis, appellate courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. We “‘will not second-guess the strategic or tactical decisions
made at trial by defense counsel.’” United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001) (quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).

       Prior to trial, the Government denied the defense counsel’s request for a forensic
toxicologist to serve as a defense consultant. The defense did not renew that request
before the military judge. The appellant now contends this constituted ineffective
assistance of counsel because there was no tactical reason for this decision, given trial
defense counsel’s minimal knowledge of toxicology. In response to an order from this
Court, trial defense counsel submitted declarations which explained they did not file a
motion for an expert because (1) they had determined the expert would not assist the
defense, based on their pretrial interview with him, and (2) it could cause the Government
to employ their own expert who would provide damaging evidence against the appellant.
These comprehensive declarations provide sound reasons for the decision now questioned
by the appellant.




                                            8                                   ACM 38247
      The appellant also complains that his trial defense counsel allowed the appellant to
concede his guilt during his unsworn statement. In that statement, the appellant told the
members:

      I stand before you filled with shame and humility.

      ....

      [M]y actions off duty have wrecked any possibility that I will have a
      successful Air Force career.

      ....

              The most important thing I want to say is to [CL. CL,] I made a
      terrible, terrible mistake and I see that now. I don’t know if it will help you
      to hear this, but I was not trying to hurt you. I wanted you to like me, and I
      let myself believe you did.

             [CL], you deserved to be taken care of that night by your friends,
      and I wish I had acted like a true friend. I hope you can move on after this
      and have a full and happy life. I hurt other people too, as I have come to
      realize this week, listening to their testimony.

             Ms. [MR], I thought highly of you. I apologize for my terribly
      inappropriate behavior. I know you have said you were fine and had to put
      it behind you, and I appreciate that much more than I can ever express. I
      am sorry I brought this on you.

       The appellant argues his defense counsel were ineffective for allowing him to say
this during the sentencing phase of his litigated court-martial, citing United States v.
Wean, 45 M.J. 461 (C.A.A.F. 1997). In that case, our superior court discussed
concessions of guilt during sentencing arguments:

      [I]n general, when an accused has consistently denied guilt, a functional
      defense counsel should not concede an accused’s guilt during sentencing,
      not only because this can serve to anger the panel members, but also
      because defense counsel may be able to argue for reconsideration of the
      findings before announcement of the sentence.

Id. at 464. At the time of the Wean trial, members were allowed to reconsider findings of
guilty at any time before announcement of the sentence. Id. at 464 n.4. Currently, and at
the time of this court-martial, Rule for Courts-Martial 924 allows members to reconsider
findings only before they are announced in open court. See also Drafter’s Analysis,


                                             9                                    ACM 38247
MCM, A21-71. With this change the rationale that lead to the Wean decision is
weakened, as is the appellant’s argument.

        Additionally, in their declarations both counsel described the appellant’s unsworn
statement as emotional, sincere, and compelling. The military judge told the parties after
trial that the appellant’s unsworn statement was one of the best he had ever heard. The
declarations also describe the defense counsel’s strategy in preparing and presenting the
defense sentencing case, including the unsworn statement, and in advising the appellant
about these matters. Given this, we find the appellant has failed to meet his burden of
demonstrating his trial defense counsel’s conduct was deficient. Furthermore, he has
failed to demonstrate any prejudice.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); Reed, 54 M.J. at 41. Accordingly, the
approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            10                                  ACM 38247
