UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, 1 LIND, and KRAUSS
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E2 CURTIS R. LONG
                          United States Army, Appellant

                                  ARMY 20120114

                            Headquarters, Fort Carson
                         Mark A. Bridges, Military Judge
                 Colonel Randy T. Kirkvold, Staff Judge Advocate


For Appellant: Captain Brian J. Sullivan, JA (argued); Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain
Brian J. Sullivan, JA (on brief).

For Appellee: Captain Timothy C. Erickson, JA (argued); Major Katherine S.
Gowel, JA; Major Alison L. Gregoire, JA (on brief).


                                   30 January 2014

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------
KRAUSS, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of rape by using force in
violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. §9 20 (2006 &
Supp. IV) [hereinafter UCMJ]. The court-martial acquitted appellant of one
specification of aggravated sexual assault by causing bodily harm and one
specification of assault consummated by a battery alleged under Articles 120 and
128, UCMJ, 10 U.S.C. §920, 928 (2006 & Supp. IV). Prior to these contested
charges, appellant pleaded guilty to one specification of a violation of a lawful

1
  Senior Judge Yob took action in this case prior to his permanent change of duty
station.
LONG — ARMY 20120114

general regulation for underage drinking in violation of Article 92, UCMJ, 10 U.S.C.
§892 (2006). The panel sentenced appellant to a bad-conduct discharge and
confinement for one year. The convening authority approved the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
argues the military judge erred by providing the panel a definition of competence to
complement instructions regarding the affirmative defense of consent and thereby
improperly introduced a theory of criminality that was not charged , rendering his
conviction unreliable. We disagree with appellant and conclude the judge
appropriately provided a definition of “competent person” in response to a request
for such definition from the panel and despite appellant’s objection . We find the
military judge’s definition was essentially correct and did nothing to undermine the
reliability of appellant’s conviction for rape. 2

                                  BACKGROUND

       Appellant was charged with the rape of SB by penetrating her vulva with his
penis using strength sufficient that SB could not avoid or escape the sexual conduct.
Alternatively, the government charged appellant with aggravated sexual assault by
causing bodily harm by holding SB’s neck, throat, and hands, as well as assault
consummated by a battery by holding and squeezing SB’s neck, throat, and hands
with his hands. All allegations were based on the same alleged event.

       SB testified that appellant forced himself upon her sexually in a manner
consistent with the specifications alleged. Although SB testified she was “tired,”
“drunk,” and “stumbling,” SB never testified she was incapacitated by alcohol or
fatigue, or that she offered anything other than conscious resistance to appellant’s
sexual advances and efforts. That resistance included telling appellant “no ,” to
“stop,” and kicking and pushing appellant away from her. She did testify that while
appellant assaulted her, she was “dizzy,” “was still feeling sick from before,” and
that her consumption of alcohol made it more difficult to resist. The government
also introduced evidence of appellant’s admission to a CID agent that SB said “no”
and that she “didn’t want to do this” before appellant committed sexual acts upon
her.

      Though the government presented evidence of SB’s intoxication and
appellant’s knowledge of and exploitation of her drunken and sickened state, the
government consistently presented its case as one of rape by force throughout the
proceedings.

2
 Appellant also raises matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), which merit neither discussion nor relief.




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LONG — ARMY 20120114

       Appellant presented a defense of consent and false accusation. 3 Through
cross-examination of the victim and direct examination of a witness present at the
scene of the alleged offense, the defense disputed SB’s contention s that she resisted
and refused consent.

       There were no objections to the judge’s initial provision of instructions ,
which included all standard instructions relevant to the charges alleged and the
affirmative defenses of consent and mistake of fact as to consent. The instructions
on rape by using force included the necessity to find appellant penetrated SB’s vulva
by force as alleged, that being “strength s ufficient that she could not avoid or escape
the sexual conduct.” The judge then defined force as “ an action to compel
submission of another or to overcome or prevent another’s resistance by physical
violence, strength, power, or restraint applied to anot her person, sufficient that the
other person could not avoid or escape the sexual act.” The judge later instructed:

             The evidence has raised the issue of whether [SB]
             consented to the sexual act concerning the offenses of rape
             and aggravated sexual assault, as alleged in Specifications
             1 and 2 of Charge I.

             Evidence of consent is relevant to whether the prosecution
             has proven the elements of the offenses beyond a
             reasonable doubt.

             Consent is also a defense to the offenses of rape and
             aggravated sexual assault, as alleged in Specif ications 1
             and 2 of Charge I.

             “Consent” means words or overt acts indicating a freely
             given agreement to the sexual conduct by a competent
             person. An expression of lack of consent through words
             or conduct means there is no consent. Lack of verbal or
             physical resistance or submission resulting from the
             accused’s use of force, threat of force, or placing another
             person in fear, does not constitute consent. A current or
             previous dating relationship by itself or the manner of
             dress of the person involved with the accused in the sexual
             conduct at issue shall not constitute consent.



3
 Appellant secured a mistake of fact instruction but did not offer argument or
otherwise rely on mistake of fact during findings.




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             The prosecution has the burden to prove beyond a
             reasonable doubt that consent did not exist. Therefore, to
             find the accused guilty of the offenses of rape and
             aggravated sexual assault, as alleged in Specifications 1
             and 2 of Charge I, you must be convinced beyond a
             reasonable doubt that at the time that [sic] the sexual act
             alleged, SB did not consent.

       There was neither objection nor request for additional instructions from either
party. When the judge asked if any member of the court had any questions, the
president said: “In your instructions you instructed us that only a competent person
can give consent. Can you define ‘competence’ legally?” After initiating discussion
with counsel on the matter, the judge asked the president: “And actually . . . let me
just clarify; are you asking this question in relation to her state of intoxication at the
time?” The president responded, “yes, sir” and the judge stated: “Okay, that’s what
I thought.” The judge then called a hearing outside the presence of the members to
address the question of further instruction.

       The defense objected to the judge giving any additional instruction “on the
grounds that [the defense did not] believe that any evidence was produced that
would warrant giving that definition of consent.” Over defense objection, the judge
decided to provide the panel a definition of consent. The instruction was taken from
a note to the military judges’ benchbook under the instruction for aggravated sexual
contact. 4 Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 3 -45-4, n.8 (1 Jan. 2010). At first, the
judge intended to offer only that portion of the instruction relative to intoxication ,
but he ultimately provided the entire instruction offered in the Benchbook at defense
counsel’s behest in light of their failed objection.

    The judge stated his reasons for giving the i nstruction in the Article 39(a),
UCMJ, hearing:

             I think, as [the president of the panel] has clearly
             indicated, his concern is whether or not somebody who is
             intoxicated or has been drinking is a competent person to

4
  We realize the military judge used the “consent” instruc tion for a crime not at issue
in this case. However, we note that the consent instruction for abusive sexual
contact is identical to the statutory definition of consent in Art icle 120, UCMJ, as
well as the Benchbook’s consent instruction for rape. Compare Benchbook, para.
3-45-4, n.8, with Manual for Courts-Martial (2008 ed.) [hereinafter MCM], Pt. IV,
¶ 45.a(t)(14) and Benchbook, para. 3-45-3, n.10.




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LONG — ARMY 20120114

             give consent. So, I think that this instruction that I
             propose to give helps the members understand what
             someone’s level of intoxication would mean with respect
             to consent.

             I think if I don’t give the instruction the members are
             going to be left hanging in the wind to decide whether or
             not somebody who is drunk can consent. I mean this
             instruction makes clear that somebody who is drunk can
             consent, as long as they’re not substantially incapable of
             understanding the conduct at issue. So, I think it is a
             helpful instruction and that’s why I’m going to give it to
             the members.

      The judge proceeded to reiterate to the panel the instruction on consent,
adding:

             A person cannot consent to sexual activity if that person is
             substantially incapable of appraising the nature of the
             sexual conduct at issue, due to mental impairment or
             unconsciousness resulting from consumption of alcohol,
             drugs, a similar substance, or otherwise; substantially
             incapable of appraising the nature of the sexual conduct at
             issue due to mental disease or defect, which renders the
             person unable to understand the nature of the sexual
             conduct at issue; or substantially incapable of physically
             declining participation in the sexual conduct at issue; or
             substantially incapable of physically communicating an
             unwillingness to engage in the sexual conduct at issue.

      The court-martial convicted appellant of rape by force and acquitted him of
aggravated sexual assault and assault consummated by a battery.

                               LAW AND ANALYSIS

       First, we find the military judge did not err by providing a definition of
“competent person” in response to the president’s query. Second, we hold the
definition provided was correct though not entirely complete. Third, we find the
judge did not introduce a theory of criminal liability upon which the court -martial
might improperly convict.

       Whether a panel was properly instructed is a ques tion of law which we review
de novo. United States v. Mott, 72 M.J. 319, 325 (C.A.A.F. 2013) (citing United
States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2013)).



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LONG — ARMY 20120114

       “The military judge has an independent duty to determine and deliver
appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)
(citing United States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990)). The
judge “must bear the primary responsibility for assuring that the [panel] properly is
instructed on the elements of the offenses raised by the evidence as well as potential
defenses and other questions of law.” Id. (citing Westmoreland, 31 M.J. at 164)
(citation and quotation marks omitted). It is entirely appropriate for the military
judge to offer definition of legal terms when prompted by reasonable inquiry from a
member of the panel. See Westmoreland, 31 M.J. at 163-65; see also Bollenbach v.
United States, 326 U.S. 607, 611-613 (1946). This is precisely what happened in
this case when the president of the panel asked the military judge to provide a legal
definition of “competent person” for the purposes of determining consent to sexual
activity.

       The evidence raised consent as an issue. The judge had already properly
instructed on consent. Faced with a panel that expressed uncertainty over definition
of a term contained in the original instructions , a term fundamental to their decision,
the judge properly offered a definition of “competent person.” The judge fulfilled
his obligation to ensure the panel was fully equipped to resolve those questions of
fact necessary for proper resolution of the charges before them for judgment.
Whether we agree with the judge’s reasons or whether his impression was a correct
one or not, competence, in this context , is a legal term of art whose definition is set
by statute and whose meaning may or may not comport with a member’s
understanding. It, therefore, warrants proper instruction from the judge. See
generally United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997) (“The comments
of the military judge should be considered in the context of the specific question
raised by the members and the full body of the instructions given by the military
judge, both at this point in the proceedings and prior to the initial deliberations of
the members.”).

       The judge’s definition drawn from the Benchbook originates in the very
statute under which appellant was charged and convicted and constitutes the
definition of competent person, albeit in the negative, for the purposes of that
statute. MCM, pt. IV, ¶ 45.a(t)(14). Lest there be any doubt, we hold here that the
statutory definition of a competent person for purposes of Article 120, UCMJ, at the
time of this case is that provided in paragraph 45.a(t)(14), Part IV, Manual for
Courts-Martial (2008 ed.) beginning with the phrase “[a] person cannot consent to
sexual activity if –” and proceeding through to the end of paragraph 45.a(t)(14)(B).

        A full definition of consent includes definition of competence to consent.
MCM, pt. IV, ¶ 45.a(t)(14). See also United States v. Neal, 68 M.J. 289, 297-98
(C.A.A.F. 2010). A full definition of competence to consent includes reference,
first, to an alleged victim’s age and second, to the alleged victim’s capacity to
appraise the nature of the sexual conduct at issue, to physically decline participation



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LONG — ARMY 20120114

in the sexual conduct, and to physically communicate unwillingness to engage in the
sexual conduct. MCM, pt. IV, ¶ 45.a(t)(14)(A)-(B). While it is better to provide the
full definition of competence, the judge’s failure to reference the victim’s age does
not prejudice appellant as there was no dispute that SB was 19 years old at the time
of the assault.

       There is nothing inconsistent with the definition of competence and the
offense of rape by using force. Force is defined as “an action to compel submission
of another or to overcome or prevent another’s resistance by physical violence,
strength, power, or restraint applied to another person, sufficient that the other
person could not avoid or escape the sexual act.” MCM, pt. IV, ¶ 45.a(t)(5). See
also United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). Therefore, as long
as the government proves beyond a reasonable doubt that an accused used such force
to cause the other person to engage in a sexual act, it does not matter if the other
person is competent to consent or not. MCM, pt. IV, ¶ 45.a(a)(1).

      Neither the affirmative defense of consent nor its competence component
obviates or undermines the burden upon the government to prove force in a case
charged such as this. The instructions provided by the judge on the government’s
burden to prove force were correct, and there is nothing in the court-martial’s
findings that provides any basis to doubt the reliability of appel lant’s conviction of
rape by using force.

       Appellant was not charged with rape by either rendering SB unconscious or by
administration of an intoxicant, nor was appellant charged with aggravated sexual
assault upon a substantially incapacitated person. See MCM, pt. IV, ¶¶ 45.a(a)(4)-
(5), 45.a(c)(2). Though the definition of competence includes reference to
unconsciousness, there is no danger that an accused charged with rape by using force
will be unjustly convicted of any of these other offenses. The law as provided in the
standard instructions ensures that guilt for rape by force comes only where the
accused compels submission or otherwise overcomes or prevents resistance. The
risk of conviction on a theory uncharged is therefore based on speculation alone.
See generally United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000).

       There is also no evidence that SB was unconscious when appellant committed
a sexual act upon her. The evidence in this case establishes that SB was competent;
that she did not consent; and that she both verbally and physically resisted
appellant’s sexual conduct. The evidence further includes appellant’s
acknowledgement that SB said “no” to his sexual advance, that she “didn’t want to
do this,” and that she brushed his hand away from her breast before he completed the
sexual act alleged. In that sense, the panel’s findings of guilt comport fully with the
evidence.




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LONG — ARMY 20120114

       Any premise that one substantially impaired by alcohol, as contemplated
under the Article 120 in effect at the time of this case, cannot be the victim of rape
by force is unpersuasive. Even if a panel faced with a similar situation were to find
that a person was substantially incapable of appraising the nature of the sexual
conduct at issue, it can very well find that the person offered resistance to whatever
bodily harm it was that she did appreciate at the time. In other words, a person who
is substantially incapable of appraising the nature of the sexual conduct yet able to
appreciate unwanted physical contact and able to manifest lack of consent one way
or another may be the victim of a rape by force if, of course, an assailant uses force
to overcome that resistance. Similarly, even if a panel were to find that a person
was substantially incapable of physically declining participation in sexual conduct ,
it may nevertheless find that the person could effectively articulate declination to
participate in sexual conduct. And, finally, even if a panel were to find that a person
was substantially incapable of physically communicating unwillingness to engage in
sexual conduct, it may nevertheless find that the person could otherwise physically
manifest unwillingness to engage in sexual conduct. In each such case, if an
assailant uses force as defined, he is subject to conviction for rape. See MCM,
pt. IV, ¶¶ 45.a(t)(5), 45.a(t)(14)(B).

       Therefore, in a case charged as rape by force, if a person is not unconscious
but substantially incapacitated otherwise, the question for the finder of fact is the
same as that involving a fully-capable person: Did the accused compel the alleged
victim’s submission or otherwise overcome or prevent that person’s resistance by
force as defined under Article 120, UCMJ. If not, the accused is not guilty of rape
by using force; if so, then the accused is guilty of rape by using force.

       “Absent evidence to the contrary, this [c]ourt may presume that members
follow a military judge’s instructions.” Id. at 198. Whichever way one may
speculate about what the panel found beyond a reasonable doubt, there is sufficient
basis in the evidence for conviction. 5 But we need not speculate. SB was
competent. She refused to consent to sexual conduct with appellant. She verbally
and physically resisted his efforts to commit sexual acts upon her. Appellant used
force to overcome that resistance and compel her submission. The evidence is




5
  “With minor exceptions for capital cases, a ‘court -martial panel, like a civilian
jury, returns a general verdict and does not specify how the law applies to the facts,
nor does the panel otherwise explain the reasons for its decision to convict or
acquit.’” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (quoting Hardy,
46 M.J. at 73).




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LONG — ARMY 20120114

legally and factually sufficient to establish appellant’s guilt for rape by using force
and there is nothing illogical or inconsiste nt about the panel’s findings. 6

       While we agree with appellant that there was insufficient evidence to find that
SB was incompetent in accord with the statutory definition, we consider the defense
objection to the additional instruction at issue on that g round unpersuasive. The
evidence raised the issue of consent; the government was required to prove lack of
consent beyond a reasonable doubt; and the panel was required to decide whether SB
consented to sexual activity. Appellant asserted the defense of consent and
requested instruction on the matter. Any argument that the defense was somehow
not on notice of the relevance of competence to consent falls on deaf ears . As
discussed, competence is an integral aspect of the statutory definition of consent for
the offense charged in this case. Appellant cannot now successfully complain that
the defense relied upon at trial was somehow undermined by its very statutory
definition.

       The appellant received a fair trial, the judge appropriately provided
instructions in light of the law, evidence, and inquiry from the panel, and the
conviction of rape by using force is reliable.



6
  Appellant argues that because the court-martial acquitted him of the lesser offenses
alleging the force relied upon by the government to prove rape by force, the
conviction for rape is therefore inconsistent and indicates the panel relied on
substantial incapacity to improperly convict appellant of rape by force. If we were
to consider the findings inconsistent, it would have no effect on the validity of
appellant’s conviction. We do not meddle with inconsistent findings of a court -
martial on appeal. See, e.g., United States v. Lyon, 15 U.S.C.M.A. 307, 313,
35 C.M.R. 279, 285 (1965) (“An inconsistent verdict is not usually a cause for relief.
The reason for the rule is that the court -martial may merely have given the accused
‘a break.’”) (internal citations omitted). There are any number of possibilities for
the panel’s findings – all within the legitimate purview of the court -martial’s power,
authority and responsibility. The court -martial may very well have properly
concluded that it was improper to convict appellant of both greater and lesser
offenses based on the same exact act, for example. See United States v. Watson,
31 M.J. 49, 53 (C.M.A. 1990) (quoting United States v. Powell, 469 U.S. 57, 65
(1984)) (“[I]nconsistent verdicts—even verdicts that acquit on a predicate offense
while convicting on the compound offense—should not necessarily be interpreted as
a windfall to the Government at the defendant’s expense. It is equally possible that
the jury, convinced of guilt, properly reached its conclusion on the compound
offense, and then through mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the lesser offense.”).




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LONG — ARMY 20120114

                                   CONCLUSION

       On consideration of the entire record, including those matters raised by
appellant pursuant to Grostefon, the parties’ briefs and oral argument, the findings
of guilty and the sentence are AFFIRMED.

      Senior Judge YOB and Judge LIND concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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