                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             TATE, HOLDEN, and HOFFMAN
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                       Private First Class PHILLIP A. HEARN
                           United States Army, Appellant

                                     ARMY 20060128

                                82nd Airborne Division
                Stephen R. Henley and Mark P. Sposato, Military Judges
    Major William A. Schmittel, Acting Staff Judge Advocate (pretrial and addendum)
      Lieutenant Colonel Steven J. Berg, Staff Judge Advocate (recommendation)

For Appellant: Captain Nathan Bankson, JA (argued); Lieutenant Colonel Steven C.
Henricks, JA; Major Fansu Ku, JA (on brief).

For Appellee: Captain James T. Dehn, JA (argued); Colonel John W. Miller II, JA;
Major Elizabeth G. Marotta, JA; Captain Michael J. Friess, JA; Captain James T.
Dehn, JA (on brief).

                                        17 July 2008

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

TATE, Chief Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of carnal knowledge and “indecent acts or liberties
with a person under 16,” in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence to a bad-conduct discharge, confinement
for five years, forfeiture of all pay and allowances, and reduction to Private E1.
This case is before the court for review pursuant to Article 66, UCMJ. 1

1
 On 26 March 2008, we heard oral argument in this case at The Judge Advocate
General’s Legal Center and School in Charlottesville, Virginia.

                                                                         (continued . . .)
HEARN – ARMY 20060128

       Appellant asserts four assignments of error; only one merits relief. Appellant
avers the military judge erred because he failed to instruct the panel sua sponte
regarding the special defense of voluntary intoxication when there was “some
evidence” raised of intoxication. Appellant, in pertinent part, cites United States v.
Watford, 32 M.J. 176 (C.M.A. 1991) and the Military Judges’ Benchbook to support
this position. 2 Conversely, appellee, relying in part on this court’s opinion in United
States v. Axelson, 65 M.J. 501 (Army Ct. Crim. App. 2007), asserts a military judge
has no sua sponte duty to instruct on voluntary intoxication.

       We agree with appellant in this instance and find the evidence sufficiently
raised the issue of voluntary intoxication; the military judge erred in not providing
that instruction to the panel. We take this opportunity to clarify the obligation of a
military judge to instruct on voluntary intoxication under Rules for Courts-Martial
[hereinafter R.C.M.] 916(l)(2) and 920 and, more significantly, the quantum of
evidence necessary to trigger that obligation. Although we set aside appellant’s
conviction for the specific intent offense of indecent acts with a child, in violation
of Article 134, UCMJ, we affirm the conviction for the lesser included offense of
indecent acts with another, also in violation of Article 134, UCMJ. We will grant
appropriate relief in our decretal paragraph.



(. . . continued)
2
 See Legal Services, Dep’t of Army, Pamphlet 27-9, Military Judges’ Benchbook,
ch. 5, para. 5-12 (2002) [hereinafter Benchbook]. The Benchbook, para. 5-12,
advises:

              Voluntary intoxication from alcohol or drugs may negate
              the elements of premeditation, specific intent, willfulness,
              or knowledge. The military judge must instruct, sua
              sponte, on this issue when it is raised by some evidence in
              the case. Instructions on the elements of any lesser
              included offenses placed into issue should be given in
              such instances, and the relationship of those offenses with
              the principal offense and the defense of intoxication
              explained. Voluntary intoxication not amounting to legal
              insanity is not a defense to ‘general intent’ crimes, nor is
              it a defense to unpremeditated murder. Voluntary
              intoxication, by itself, will not reduce unpremeditated
              murder to a lesser offense.



                                           2
HEARN – ARMY 20060128

                                        FACTS

      Appellant was charged with two specifications of carnal knowledge involving
two different minor children, AD and AS. The panel convicted appellant of carnal
knowledge with AD as charged. Regarding carnal knowledge with AS, the panel
convicted appellant by exceptions and substitutions of the lesser included offense of
“indecent acts or liberties with a person under 16 (AS),” under Article 134, UCMJ. 3

                            Specification 1 of The Charge

       At the time of the alleged offenses, appellant was a twenty-year-old private
(E2) stationed at Fort Bragg, North Carolina. On or about 1 August 2005, appellant
engaged in sexual intercourse with a fifteen-year-old girl (AD) approximately two
weeks before her sixteenth birthday. AD became pregnant, but miscarried early in
the pregnancy. Prior to the miscarriage, appellant admitted paternity. At trial,
however, appellant denied paternity and claimed he made the prior admission in an
effort to hide his homosexuality.

                            Specification 2 of The Charge

       On 6 November 2005, appellant was alleged to have engaged in sexual
intercourse with a fourteen-year-old girl (AS). This liaison took place in a nursery
room at the Solid Rock United Methodist Church, where both AS and appellant
attended religious services. The following day, on 7 November 2005, AS
approached a lay clergyman, Mr. Jason Blakeman, and told him appellant engaged in
sexual activities with her in the church. Mr. Blakeman contacted church officials
who told him the incident must be reported to law enforcement authorities because
AS was a minor. On his own initiative, Mr. Blakeman contacted appellant’s parents
and informed them of the allegation of sexual activity between AS and appellant.
Mr. Blakeman explained to appellant’s parents that Mr. Blakeman was not an
ordained minister of that particular church; however, he was nonetheless a member
of the clergy and was required by law to report the matter to the authorities.

3
  In his first assignment of error, relying on United States v. Walters, 58 M.J. 391
(C.A.A.F. 2003), appellant asserts the findings for Specification 2 of the Charge are
too “vague and ambiguous” to enable us to affirm the conviction of the lesser-
included Article 134, UCMJ, offense (indecent acts or liberties). We disagree and
find no such ambiguity. See United States v. Brown, 65 M.J. 356 (C.A.A.F. 2007);
see also United States v. Neblock, 45 M.J. 191, 195 (C.A.A.F. 1996) (“committing
indecent acts with a child and taking indecent liberties with that child are violations
of the same provision of military law.”).


                                           3
HEARN – ARMY 20060128

      On 13 November 2005, at the insistence of his parents, appellant called
Mr. Blakeman on his cellular phone. Mr. Blakeman answered appellant’s call while
he was in the office of the deputy sheriff reporting the sexual allegation. 4 After
some initial discussion, appellant telephonically related his version of the events
regarding AS to Mr. Blakeman including admitting appellant had sexual contact with
her.

       On 14 or 15 November 2005, three noncommissioned officers (NCOs) in
appellant’s supervisory chain approached appellant at his unit to discuss the
allegation. The NCOs ordered appellant to write a sworn statement explaining his
version of the events. One of the NCOs checked with appellant every few minutes
until appellant completed the statement. The military judge held this interrogation
was custodial in nature and was conducted without advising appellant of his rights
under Article 31, UCMJ. Accordingly, he suppressed the statement.

       On 16 November 2005, two of the NCOs involved in the prior questioning of
appellant escorted him to the Harnett County Sherriff’s Office for an interview
requested by Detective McMurray. Detective McMurray met in private with
appellant and advised him that he was not in custody. At the conclusion of the
interview, appellant signed a sworn statement describing the events of 6 November
2005. In the statement, appellant admitted he kissed AS; however, he maintained he
could not recall what happened after the kiss. Appellant averred he had limited
recollection of the events due to extreme intoxication.

       On 17 November 2005, appellant was apprehended and placed in the county
jail. Mr. Blakeman visited appellant in the jail, ostensibly in his capacity as a
clergyman. Once again, appellant relayed potentially incriminating statements to
Mr. Blakeman.

      Prior to trial on the merits, appellant moved to suppress several statements he
made to Mr. Blakeman. After an evidentiary hearing where appellant and Mr.
Blakeman presented conflicting testimony, the military judge ruled appellant’s
statements to Mr. Blakeman were admissible. 5 In addition to the motion to exclude

4
 The deputy sheriff, however, was not aware Mr. Blakeman was talking to appellant
and appellant was unaware of Mr. Blakeman’s location at the time of the call.
5
 In his second assignment of error, appellant alleges the military judge erred in
admitting appellant’s statements to Mr. Blakeman, in violation of Mil. R. Evid. 503.
See United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006). Assuming arguendo,
appellant’s statements were privileged communications under Mil. R. Evid. 503, we

                                                                  (continued . . .)
                                          4
HEARN – ARMY 20060128

appellant’s statements to Mr. Blakeman, appellant’s motion to suppress several
statements appellant made to Detective McMurray was also denied. 6

                                 Trial on the Merits

                              Prosecution Case-in-Chief

       The government case-in-chief consisted of three witnesses who testified about
appellant’s sexual relationship and impregnation of AD, the subject of Specification
1 of the Charge, and four witnesses concerning the 6 November 2005 incident with
AS, the subject of Specification 2 of the Charge.


(. . . continued)
find the error did not substantially prejudice appellant’s rights. See Article 59a,
UCMJ. In addition to the substantial testimony provided by government witnesses,
appellant gave an otherwise admissible statement to a civilian detective and testified
at trial. Therefore, any testimony provided by Mr. Blakeman regarding the
substantive elements of Specification 2 that involved purported privileged
communications was cumulative of other admissible testimony. Although not
asserted by appellant, we also find appellant’s due process rights were not violated
by the arguably erroneous admission of appellant’s statements to Mr. Blakeman. See
United States v. McAllister, 64 M.J. 248, 250-51 (C.A.A.F. 2007) (finding a due
process violation for nonconstitutional error when, if not for otherwise inadmissible
evidence, “the defense would have been able to dramatically alter the evidentiary
landscape”).
6
  Appellant has failed to establish his initial unwarned statements to his unit’s NCOs
on 14 or 15 November 2005 were coerced. Such a finding would presumptively taint
any subsequent confession. See United States v. Cuento, 60 M.J. 106, 109 (C.A.A.F.
2004) (when a prior statement is actually coerced there is a presumptive taint on any
subsequent confessions). In this case, there were no threats or physical abuse by the
NCOs. Additionally, the interrogation did not continue for a prolonged period of
time and there was no evidence of imprisonment during questioning. Second,
contrary to appellant’s assertions, we find the 16 November 2005 interview with
Detective McMurray was not a coercive event and was not given under coercion,
force, or threats. The totality of the circumstances, to include appellant’s relative
age and maturity level, do not raise concerns about the statement’s voluntariness.
Under the totality of the circumstances surrounding the 14 or 15 November and 16
November 2005 statements, we conclude appellant’s decision to make a second
statement on 16 November 2005 was made voluntarily.



                                          5
HEARN – ARMY 20060128

       Concerning the 6 November 2005 incident, AS testified she and appellant
were “hanging out” at church, along with approximately four other youths. AS left
the group to go to the bathroom. When AS came out of the bathroom, the “nursery
room door” was open and appellant was standing in the middle of the room.
Appellant asked AS to come in to the room and then shut and locked the door.
Appellant started kissing AS, took off his pants, and they had sexual intercourse for
approximately two minutes. The intercourse was interrupted by knocking on the
door. During the incident, AS did not recall smelling any alcoholic beverages on
appellant’s breath.

        In addition to AS’s testimony, her friend, KW, testified about her knowledge
of the incident. KW was introduced to appellant by AS just prior to the alleged
incident. When AS went to the bathroom, KW went to look for her. KW saw
appellant, but did not witness anything out of the ordinary. When specifically
questioned by a member of the panel concerning appellant’s level of intoxication,
KW testified appellant did not appear to be intoxicated. 7 KW spoke with appellant
on the telephone after 6 November 2005 and appellant admitted to her he kissed AS
and also conceded something more sexually overt might have occurred.

                                Defense Case-in-Chief

       The defense case-in-chief centered principally upon the theory that appellant
was a homosexual and, therefore, would never have sexual relations with a female of
any age. However, this theory was undercut by appellant’s sworn statement.
Appellant testified he only admitted having sexual intercourse with AD and AS in
his sworn statement because, “[m]e and my boyfriend can’t have kids, and since I
was about 16 I’ve always wanted kids, I’ve always wanted a family. It’s kind of
hard to do when you’re a homosexual.”

       Appellant further described his relationship with AD and detailed the
problems AD was having with her mother. When appellant discovered AD was
pregnant, “I saw an opportunity to have a family and I wanted to take it. I wanted
the kid. I wanted to be happy. I wanted a normal life.” Appellant acknowledged he
lied to “everyone” and when AD had a miscarriage “[i]t hurt a lot, it was a dream
being flushed down the toilet.”

      Finally, appellant testified in detail about the incident on 6 November 2005
(Specification 2 of the Charge) in the following colloquy with his defense counsel:

7
 Mr. Blakeman also testified about his knowledge of the incident between AS and
appellant. See footnote 4, supra.


                                           6
HEARN – ARMY 20060128

          DC: Let’s go to November 6th. Tell me about what you
          planned on doing out there.

          ACC: I had wanted to kill myself, I wanted to end it. I
          was tired of life, I was tired of not fitting in, not being
          normal. It was, at the time, it was the only way I could
          see to just get away from it all.

                 I was going to get drunk, get up with a friend—he
          had a couple pistols, I was going to swipe one—go out
          back and put a bullet in my head.

          DC: Now, you told Detective McMurray that you couldn’t
          remember anything after [AS] kissed you, is that the truth?

          ACC: Yes, ma’am.

          DC: Okay. If you don’t remember anything, how do you
          know you didn’t have sexual intercourse with [AS]?

          ACC: After about two or three beers, the alcohol—I’m
          sexually-I can’t get an erection with alcohol in my system.

    Appellant later elaborated on this 6 November 2005 incident:

                 I had gone to youth--to church that morning with
          my family. . . . [Later] I got out the alcohol and began to
          drink. . . . We were there for a little while, pretty
          dark. . . . I finished off my drink and threw it in the
          dumpster. . . . Pretty much, I was pretty buzzed by that
          point, I can recall.

          ...

                 I don’t even remember why I was in the room. I
          can remember myself just standing there. That’s when a
          female walked in the room, closed the door. At the time I
          didn’t know who it was, it was not until I talked to
          Mr. Blakeman a week later, he’s the one who told me it
          was [AS] that had come in the room.

               I was buzzed. The room was spinning and I
          remember her coming up to me, and I don’t know whether

                                        7
HEARN – ARMY 20060128

             I passed out or what. I remember kissing her and then it
             just went black. I don’t know if I passed out or what, sir.

      In appellant’s sworn statement and in his testimony at trial, appellant claimed
he drank approximately twenty-four ounces of “Everclear” grain alcohol between the
time he left the church and when he went back inside the church and encountered
AS. Appellant further testified less then an hour transpired between when he started
drinking and when he blacked out.

                                 Panel Instructions

       During a hearing conducted pursuant to Article 39(a), UCMJ, regarding
potential panel instructions, the following colloquy ensued between the military
judge, trial counsel, and defense counsel:

             MJ: Do counsel see any lesser included offenses that are
             at issue in this case?

             TC: No, Your Honor.

             ...

             DC: Sir, I do think that [AD] raises some evidence of
             indecent liberties if carnal knowledge is not there. I
             mean, she talks about a relationship that went on between
             the two of them that involved not only sex but sexual
             touching.

             ...

             MJ: Okay. I’ll instruct on the elements of carnal
             knowledge and the lesser included offense of indecent
             liberties with a child. I don’t believe mistake of fact as to
             the age of either girl has been raised as an issue.

        Furthermore, the defense proposed a physical impossibility instruction, which
stated in pertinent part:

             The evidence has raised an issue of physical impossibility
             in relation to the offense of carnal knowledge with [AS].
             In this regard, there has been testimony tending to show
             that the accused may have been intoxicated on the evening
             of 6 November 2005. . . .

                                           8
HEARN – ARMY 20060128

             If [sic] the accused’s physical condition made it
             impossible for him to have sexual intercourse. . . . If you
             are convinced beyond a reasonable doubt that at the time
             of the charged offense it was physically possible for the
             accused to have sexual intercourse, then the defense of
             physical impossibility does not exist.

       The military judge denied appellant’s defense counsel’s request for a physical
impossibility instruction and specifically asked appellant if there were “[a]ny other
instructions either side is requesting.” Both trial counsel and defense counsel
responded, “No.”

       The military judge then provided the panel with written instructions regarding
the elements of Specification 2 of the Charge and told the panel:

             First . . . as to Specification 2, at or near Spout Springs,
             North Carolina, on or about 6 November 2005, the accused
             committed an act of sexual intercourse with [AS];

             Second, that . . . [AS was] not the accused’s wife;

             And third, that at the time of the act of sexual intercourse,
             . . . [AS was] under 16 years of age.

       In advising the panel on the lesser-included offense of indecent acts with a
minor, the military judge informed the panel:

             First . . . as to Specification 2, at or near Spout Springs,
             North Carolina, on or about 6 November 2005, the accused
             committed a certain act upon the body of [AS] by kissing
             her and removing his pants and underwear, and asking her
             to remove her underwear in each other’s presence;

             Second, that at the time of the alleged act, . . . [AS] was a
             female under the age of 16 years;

             Third, the act of the accused was indecent;

             Fourth, that . . . [AS] was a person not the spouse of the
             accused;

             Fifth, that the accused committed the act with the intent to
             gratify the lust or sexual desires of the accused;

                                           9
HEARN – ARMY 20060128

               And sixth, that under the circumstances the conduct of the
               accused was to the prejudice of good order and discipline
               in the armed forces, or was of a nature to bring discredit
               upon the armed forces.

                                          LAW

                                      Instructions

       “The question of whether a jury was properly instructed [is] a question of law,
and thus, review is de novo.” United States v. Schroder, 65 M.J. 49, 54 (C.A.A.F.
2007) (citation omitted). “The military judge bears the primary responsibility for
ensuring that mandatory instructions . . . are given and given accurately.” United
States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003); see also R.C.M. 920(a). 8

        Required instructions on findings include “[a] description of the elements of
each lesser included offense in issue” and “[a] description of any special defense
[i.e. affirmative defense] under R.C.M. 916 in issue.” R.C.M. 920(e). “A matter is
‘in issue’ when some evidence, without regard to its source or credibility, has been
admitted upon which members might rely if they choose.” R.C.M. 920(e)
discussion. Further, although R.C.M. 920(f) provides “[f]ailure to object to an
instruction or to omission of an instruction before the members close to deliberate
constitutes waiver of the objection in the absence of plain error,” our superior court
held this rule of waiver “does not apply to required instructions.” United States v.
Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).
                           Instructions on Special Defenses

       If a special defense is reasonably raised by the evidence, the military judge
has a sua sponte duty to instruct the members on the defense. United States v.
Davis, 53 M.J. at 205 (citation omitted); see also R.C.M. 916. A defense is
reasonably raised when there is some evidence to which the panel members “might
attach credence.” United States v. Watford, 32 M.J. 176, 178 (C.M.A. 1991). If

8
    The Discussion to R.C.M. 920(a) states:

               Instructions consist of a statement of the issues in the
               case and an explanation of the legal standards and
               procedural requirements by which the members will
               determine findings. Instructions should be tailored to fit
               the circumstances of the case, and should fairly and
               adequately cover the issues presented.


                                              10
HEARN – ARMY 20060128

there is any doubt as to whether a lesser included offense or special defense is in
issue, the doubt shall be resolved in favor of appellant. Davis, 53 M.J. at 205 (citing
United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981)).

       In military jurisprudence, special defenses include justification, obedience to
orders, self-defense, accident, entrapment, coercion or duress, inability, ignorance or
mistake of fact, and lack of mental responsibility. R.C.M. 916(c)–(k). “An accused
may also raise voluntary intoxication, R.C.M. 916(l)(2), or partial mental
responsibility [R.C.M. 916(k)(2)] to refute a specific intent mens rea element of an
offense.” Axelson, 65 M.J. at 513-14. Rule for Courts-Martial 916(l)(2) provides:

             Voluntary intoxication, whether caused by alcohol or
             drugs, is not a defense. However, evidence of any degree
             of voluntary intoxication may be introduced for the
             purpose of raising a reasonable doubt as to the existence
             of actual knowledge, specific intent, willfulness, or a
             premeditated design to kill, if actual knowledge, specific
             intent, willfulness, or premeditated design to kill is an
             element of the offense.

                                    DISCUSSION

                               Voluntary Intoxication

       As noted by appellant, the defense of voluntary intoxication is a mandatory
instruction when “some evidence” of intoxication “raise[s] a reasonable doubt about
actual knowledge, specific intent, willfulness, or premeditation when they are
elements of a charged offense.” United States v. Hensler, 44 M.J. 184, 187
(C.A.A.F. 1996); see also Watford, 32 M.J. at 178. Appellee’s contrary position is
understandable given the unclear language of R.C.M. 916 regarding voluntary
intoxication. Indeed, R.C.M. 916 lists “voluntary intoxication” under a subheading
entitled, “not defenses generally,” and begins by stating unequivocally, “[v]oluntary
intoxication, whether caused by alcohol or drugs, is not a defense.” Cf. United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-42 (1989) (the plain
language will control, unless use of the plain language would lead to an absurd
result).




                                          11
HEARN – ARMY 20060128

       Notwithstanding the vague language of R.C.M. 916(l)(2), military courts have
historically treated “voluntary intoxication” as a special defense. 9 We are cognizant
“of the importance that the doctrine of stare decisis plays in our decision-making.”
United States v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003). 10 Stare decisis is “most
compelling” where courts undertake statutory and rule construction. Hilton v. South
Carolina Public Rys. Comm’n, 502 U.S. 197, 205 (1991). We find nothing in the
“precedent at issue [voluntary intoxication] unworkable or . . . badly reasoned” and,
accordingly, will continue to apply voluntary intoxication as a defense to specific
intent offenses. United States v. Inong, 58 M.J. 460, 464 (C.A.A.F. 2003) (quotation
marks and citation omitted).

       While we agree voluntary intoxication may be a defense to a specific intent
crime, we disagree with appellant on the quantum of “some evidence” needed to
mandate such a panel instruction. See generally R.C.M. 920(e). Although not well-
articulated by the Benchbook or caselaw, evidence that an accused consumed
intoxicants, standing alone, is insufficient to require a voluntary intoxication
instruction. See Watford, 32 M.J. at 179 (noting the “utter absence of any evidence
of alcoholic intoxication – as opposed to alcoholic consumption” (emphasis in
original)). When raising an issue of voluntary intoxication as a defense to a specific
intent offense, “there must be some evidence that the intoxication was of a severity
to have had the effect of rendering the appellant incapable of forming the necessary
intent, not just evidence of mere intoxication.” Peterson, 47 M.J. at 234 (quotation
marks and citation omitted) (a military judge has an obligation to discuss voluntary
intoxication as a defense to a specific intent offense when reasonably raised during
guilty plea inquiry).




9
  See United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F. 1997); Watford, 32 M.J.
at 178; United States v. Mayville, 15 U.S.C.M.A. 420, 35 C.M.R. 392 (1965); United
States v. Miller, 2 U.S.C.M.A. 194, 7 C.M.R. 70 (1953); see also William Winthrop,
Military Law and Precedents 293 (2d. ed. 1920 reprint) (“[T]he question of whether
or not the accused was drunk at the time of the commission of the criminal act may
be material as going to indicate what species or quality of offence was actually
committed.”).
10
  The doctrine of stare decisis is “the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and perceived integrity
of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).



                                          12
HEARN – ARMY 20060128

       We adopt a three-prong test to determine whether “some evidence” of
voluntary intoxication was raised at trial: “A defendant is entitled to a voluntary
intoxication jury instruction when: (1) the crime charged includes a mental state;
(2) there is [evidence of impairment due to the ingestion of alcohol or drugs]; and
(3) there is evidence that the [impairment] affected the defendant's ability to form
the requisite intent or mental state.” State v. Kruger, 67 P.3d 1147, 1149 (Wash. 11
Ct. App. 2003) (citation omitted). Put more concisely: “[T]he evidence must
reasonably and logically connect the defendant’s intoxication with the asserted
inability to form the required level of culpability to commit the crime charged.” Id.
at 1149-50 (quotation marks and citation omitted).

       We conclude there was sufficient evidence of voluntary intoxication to
mandate a panel instruction. First, the offense of which appellant was convicted,
indecent acts with a child, is a specific intent offense. See United States v. Strode,
43 M.J. 29, 32 (C.A.A.F. 1995) (noting that specific intent is needed for the element
of “intent to arouse, appeal to, or gratify [one’s] . . . sexual desires” for indecent
acts with a child); United States v. Kenerson, 34 M.J. 704, 705 (A.C.M.R. 1992)
(“[I]ndecent acts with another and indecent liberties (or acts) with a child. The
former is a general intent crime; the latter requires a specific intent.” (emphasis in
original)). Second, evidence was presented that appellant consumed a substantial
amount of alcohol—in particular “Everclear” (190-proof grain alcohol)—within
approximately one hour of the charged offense. 12 In fact, appellant testified that he
consumed between twenty and twenty-four ounces of “Everclear.” Finally, appellant
consistently maintained he could not recall a significant portion of his encounter
with AS because he “was feeling the effects of alcohol” and the “room began to
spin.” Appellant further stated, “[t]he room was spinning and I remember her
coming up to me, and I don’t know whether I passed out or what. I remember
kissing her and then it just went black.” 13 In sum, we find the evidence in the record
reasonably raised the affirmative defense of voluntary intoxication and the military
judge’s failure to instruct sua sponte on that defense constitutes legal error.



11
     Corrected
12
  See Iowa v. Rohm, 609 N.W.2d 504, 507 n.1 (Iowa 2000) (noting the potency and
potential danger of grain alcohol such as “Everclear”).
13
  It is noteworthy a panel member asked a specific question of a government witness
regarding appellant’s level of intoxication and mental state during the charged
offense.



                                          13
HEARN – ARMY 20060128

       “Once it is determined that a specific instruction is required but not given, the
test for determining whether this constitutional error was harmless is whether it
appears ‘beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.’” United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.
2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “Attempting to
infer how court members might have voted if properly instructed is always risky
business; and this case is no exception.” United States v. Rodwell, 20 M.J. 264, 268
(C.M.A. 1985). Under the limited facts presented at trial, a properly instructed
panel may have believed appellant could not form the requisite intent because of the
effects of his heavy consumption of alcohol and inability to recollect the events of
the charged offense. “We simply are unable to conclude that appellant was not
prejudiced here by the instruction omission.” Id. We hold the failure of the military
judge to instruct on the affirmative defense of voluntary intoxication was prejudicial
error and cannot affirm appellant’s conviction for indecent acts or liberties with a
child.

                               Lesser Included Offense

       Our conclusion that we cannot affirm the conviction for indecent acts or
liberties with a child does not end our analysis. We now consider whether the
instructions and evidence are sufficient to sustain a conviction for a lesser included
offense. See Article 79, UCMJ. We find the evidence adduced at trial, to include
appellant’s own testimony, adequately supports a finding of guilty of the lesser
included offense of indecent acts with another, in violation of Article 134, UCMJ. 14
Significantly, under the facts of this case, there is no element of the lesser included

14
  See United States v. Backley, 2 U.S.C.M.A. 496, 9 C.M.R. 126 (1953) (affirming
the lesser included general intent offense because the military judge failed to give a
voluntary intoxication instruction for the greater offense); see generally United
States v. Berri, 30 M.J. 1169, 1174 (C.G.C.M.R. 1990) (“[T]he findings of guilty for
the offenses containing a specific intent element cannot be affirmed. There is a
lesser included offense . . . which may be affirmed, because a specific intent is not
required for commission of that offense.”); United States v. Benton, 7 M.J. 606, 608
(N.M.C.M.R. 1979) (finding the instructions at trial adequate to permit affirmance
of a lesser included general intent offense when the court found an instructional
error to the greater offense); United States v. Riege, 5 M.J. 938, 942 (N.M.C.M.R.
1978) (discussing alcohol induced amnesia as a defense in the context of voluntary
intoxication and insanity). (United States v. Randolph, 5 C.M.R. 779 (A.F.B.R.
1952); United States v. Rouillard, 6 C.M.R. 341 (A.B.R. 1952); United States v.
Carpenter, 5 C.M.R. 248 (A.B.R. 1952).



                                           14
HEARN – ARMY 20060128

offense of indecent acts with another not already addressed by the military judge’s
instructions. See United States v. McKinley, 27 M.J. 78, 79 (C.M.A. 1988) (noting
military appellate courts can affirm a lesser included offense “even if the lesser-
included offense was neither considered nor instructed upon” at trial); see also
United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008). Indeed, indecent acts
with another is specifically listed as a lesser included offense of indecent acts or
liberties with a child. See MCM, Part IV, para. 87.d.(1).

        At trial, there was no question whether appellant knew AS was under the age
of sixteen at the time of the offense. During appellant’s own testimony, he
affirmatively stated he knew on the date at issue AS was only fourteen years old.
Moreover, appellant’s defense counsel reaffirmed this understanding when
discussing instructions with the military judge, conceding a mistake of fact as to age
instruction was not reasonably raised by the evidence. In this case, the indecency of
the offense was intrinsically linked to the age of the victim, AS, rather than presence
of a third-party or the issue of consent. See Strode, 43 M.J. at 32 (“[A]ge is relevant
to prove the elements that the act was indecent and service-discrediting. An act that
may not be indecent between consenting adults may well be made indecent because
it is between an adult and a child.”); see also United States v. French, 31 M.J. 57, 59
(C.M.A. 1990); United States v. Tindoll, 16 U.S.C.M.A. 194, 195, 36 C.M.R. 350,
351 (1966). Therefore, as the panel concluded, appellant’s sexual activity with AS
was prejudicial to good order and discipline, service discrediting, and constituted an
indecent act. 15 See United States v. Zachary, 61 M.J. 663, 675 (Army Ct. Crim. App.
2005), aff’d, 63 M.J. 438 (C.A.A.F. 2006) (affirming the lesser-included offense of
indecent acts with another, in violation of Article 134, UCMJ, when the evidence
raised the affirmative defense of mistake of fact for the greater offense of indecent
acts with a child).

       In addition to the status of the victim as a minor, appellant’s conduct, to
include his own testimony that he and AS kissed, occurred “in such a place and
under such circumstances that it is reasonably to be seen by others even though
others actually [did] not view the acts.” United States v. Izquierdo, 51 M.J. 421, 432
(C.A.A.F. 1999) (holding it is not necessary to prove a third person was present,
only that it was reasonably likely that a third person was present); see also United
States v. Rollins, 61 M.J. 338, 344 (C.A.A.F. 2005) (“The determination of whether

15
  An indecent act “signifies that form of immorality relating to sexual impurity
which is not only grossly vulgar, obscene, and repugnant to common propriety, but
tends to excite lust and deprave the morals with respect to sexual relations.” MCM,
Para IV, para 90.c.



                                          15
HEARN – ARMY 20060128

an act is indecent requires examination of all the circumstances, including the age of
the victim, the nature of the request, the relationship of the parties, and the location
of the intended act.”). The evidence introduced at trial demonstrated the Solid Rock
United Methodist Church was a public location and the nursery room where the
offense occurred was reasonably viewable by a third party, even if some testimony
indicated the door to the nursery was locked. Consequently, such conduct was
sufficiently “open and notorious.” See Zachary, 61 M.J. at 675 (finding appellant's
statements during the providence inquiry adequately support a finding of guilty to
the lesser included offense of indecent acts with another, in violation of Article 134,
UCMJ, since his conduct was open and notorious).

      In this particular case, the age of the victim, location of the charged offense,
and “open and notorious” nature of the offense were sufficient to establish the
indecency of appellant’s acts with AS. Simply stated, appellant’s conduct was
prejudicial to good order and discipline, service discrediting, and we affirm a
conviction of the lesser included offense of indecent acts with another.

                               Sentence Reassessment

       In light of our decision to affirm the conviction for the lesser included
offense, we reassess appellant’s sentence. “[I]f the court can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of at least
a certain severity, [then] a sentence of that severity or less will be free of the
prejudicial effects of error . . . .” United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F.
2006) (quotation marks and citation omitted); see also United States v. Sales, 22
M.J. 305, 307 (C.M.A. 1986). In curing the errors through reassessment, we must
ensure the sentence is “equal to or no greater than a sentence that would have been
imposed if there had been no error.” Moffeit, 63 M.J. at 41 (citing Sales, 22 M.J. at
308); see also United States v. Buber, 62 M.J. 476, 477 (C.A.A.F. 2006). If we can
“reliably determine what sentence would have been imposed at the trial level if the
error had not occurred,” we need not order a rehearing on the sentence. Sales, 22
M.J. at 307.

      Considering the nature of the remaining findings of guilty and the sentence
adjudged at trial, “we perceive no reasonable possibility of benefit to [appellant] by
[sending his case back to the convening authority] for reassessment of the sentence.”
United States v. Sims, 57 M.J. 419, 422 (C.A.A.F. 2002) (citation omitted). There is
no significant “change in sentencing landscape” and we can reliably reassess
appellant’s sentence. Moffeit, 63 M.J. at 43 (Baker, J., concurring). Although the
maximum possible punishment has decreased by two years confinement, appellant’s




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HEARN – ARMY 20060128

offenses and the aggravating circumstances remain largely unaffected. 16
Additionally, the panel sentenced appellant to a bad-conduct discharge, confinement
for five years, forfeiture of all pay and allowances, reduction to Private E1—a
sentence well below the authorized maximum punishment that includes a
dishonorable discharge and confinement for twenty-seven years. We are confident,
therefore, the panel would have imposed a sentence of a similar magnitude had
appellant been convicted of the lesser included offense of indecent acts with another
at trial. Applying this analysis, and after careful consideration of the entire record,
we are satisfied beyond a reasonable doubt the panel would have adjudged a
sentence of no less than a bad-conduct discharge, confinement for four years and
seven months, forfeiture of all pay and allowances, and reduction to E-1.

                                   CONCLUSION

       Accordingly, the court affirms the finding of guilty for Specification 2 of the
Charge to the lesser included offense of indecent acts with another, in violation of
Article 134, UCMJ. The remaining findings of guilty are affirmed. We have
considered appellant's remaining assignments of error and the matters personally
raised by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
and find them to be without merit. Reassessing the sentence on the basis of the error
noted, the entire record, and applying the principles of Sales, 22 M.J. at 305 and
Moffeit, 63 M.J. at 40, 42-44, to include those principles identified by Judge Baker
in his concurring opinion, the court affirms only so much of the sentence as provides
for confinement for four years and seven months and the remainder of the approved
sentence.

      Senior Judge HOLDEN and Judge HOFFMAN concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:



                                         MARY B. CHAPMAN
                                        MARY  B.Clerk
                                         Deputy CHAPMAN
                                                      of Court


16
  Compare MCM, Part IV, para. 87(e) (indecent acts or liberties with a child) (The
maximum punishment is: “Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 7 years.”), with MCM, Part IV, para. 90(e)
(indecent acts with another) (The maximum punishment is: “Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 5 years.”).


                                          17
