       This opinion is subject to revision before publication



         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                          Appellant
                                v.
 Jacob L. PEASE, Information Systems Technician Se-
                      cond Class
              United States Navy, Appellee
                          No. 16-0014
                    Crim. App. No. 201400165
       Argued January 12, 2016—Decided March 17, 2016
                   Military Judge: J. K. Waits
   For Appellant: Major Suzanne M. Dempsey, USMC (ar-
   gued); Colonel Mark K. Jamison, USMC; Captain Matthew
   M. Harris, USMC; Lieutenant Amy L. Freyermuth, JAGC,
   USN, and Brian K. Keller, Esq. (on brief).
   For Appellee: Eric S. Montalvo, Esq. (argued); Lieutenant
   Christopher C. McMahon, JAGC, USN, and Carol A.
   Thompson, Esq. (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judges STUCKY and
   RYAN, and Senior Judge SENTELLE, joined.
                     _______________

   Judge OHLSON delivered the opinion of the Court. 1

    A panel of officer and enlisted members sitting as a gen-
eral court-martial convicted Appellee of two specifications of
fraternization, one specification of abusive sexual contact,
and three specifications of sexual assault, in violation of Ar-
ticles 92 and 120, UCMJ, 10 U.S.C. §§ 892, 920 (2012). The
adjudged and approved sentence provided for a dishonorable
discharge and confinement for six years. The United States
Navy-Marine Corps Court of Criminal Appeals (CCA) af-

   1 Senior Judge David B. Sentelle, of the United States Court of
Appeals for the District of Columbia Circuit, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
            United States v. Pease, No. 16-0014/NA
                     Opinion of the Court

firmed the Article 92, UCMJ, fraternization convictions, but
reversed the Article 120, UCMJ, sexual assault and abusive
sexual contact convictions on the basis of factual insufficien-
cy and directed the case be returned for a rehearing on the
sentence. United States v. Pease, 74 M.J. 763, 771 (N-M. Ct.
Crim. App. 2015).
   Following this decision, the Judge Advocate General of
the Navy (TJAG) certified the following two issues for our
review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)
(2012):
      I. The lower court judicially defined “incapable of
      consenting” contrary to the instructions given to
      the members and used this definition to find three
      charges of sexual assault and one charge of abusive
      sexual contact factually insufficient. In creating
      this new legal definition not considered by the
      factfinder and nowhere present in the record, did
      the lower court consider matters outside the record
      and outside its statutory authority in conducting its
      factual sufficiency review?
      II. The lower court judicially defined “incapable of
      consenting” in a manner that limits prosecutions to
      only two situations—“inability to appreciate” and
      “inability to make and communicate” an agree-
      ment. To prove the latter, the court further re-
      quired proof that a victim be unable both to make
      and to communicate a decision to engage in the
      conduct at issue. Nothing in the statute reflects
      Congressional intent to limit Article 120, UCMJ,
      prosecutions in this manner. Did the lower court
      err?
United States v. Pease, 75 M.J. 44, 44–45 (C.A.A.F. 2015).
We answer the certified issues in the negative by holding
that (1) the CCA was not bound by the military judge’s trial
instructions in conducting its Article 66(c), UCMJ, 10 U.S.C.
§ 866(c) (2012), factual sufficiency review, and (2) the CCA
applied the proper definition of “incapable of consenting” in
its factual sufficiency analysis despite an apparent scrive-
ner’s error in its definition of “incapable of consenting.” We
therefore affirm the CCA’s decision.




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             United States v. Pease, No. 16-0014/NA
                      Opinion of the Court

                         I. Background
    Appellee was an information systems technician second
class (IT2) serving aboard the USS Mount Whitney. He had
supervisory responsibilities over two female sailors, IT2 BS
and Information Systems Technician Seaman (ITSN) SK, in
the radio division of the ship’s communications department.
In separate incidents involving port calls, Appellee engaged
in sexual activities with these two sailors after they had
consumed large amounts of alcohol, resulting in the Gov-
ernment charging Appellee with the three sexual assault
and one abusive sexual contact specifications at issue in this
appeal. 2
    The panel convicted Appellee of the sexual assault and
sexual contact offenses after receiving the military judge’s
instructions on the elements for these offenses. Of relevance
to this case, the military judge instructed the members that
in order to find Appellee guilty, they had to be convinced be-
yond a reasonable doubt that Appellee committed the sexual
acts and sexual contact while ITSN SK and IT2 BS were “in-
capable of consenting to” the sexual activity “due to impair-
ment by an intoxicant, and that the condition was known or
reasonably should have been known by” Appellee. The mili-
tary judge explained the concept of “consent” as follows:
       Evidence of consent to the sexual act is relevant as
       to whether the prosecution has proven the elements
       of the offense beyond a reasonable doubt. Stated
       another way, evidence that the alleged victims con-
       sented to any of the alleged sexual acts [or contact],

   2  The Government charged Appellee with sexually assaulting
ITSN SK by penetrating her vulva with his penis while she “was
incapable of consenting to the sexual act due to impairment by an
intoxicant, and that condition was known or reasonably should
have been known by” Appellee. The Government also charged Ap-
pellee with (1) abusive sexual contact by “biting” IT2 BS’s breast
while she was “incapable of consenting to the sexual contact due to
impairment by an intoxicant, and that condition was known or
reasonably should have been known by” Appellee, and (2) sexual
assault by (a) penetrating IT2 BS’s anus with his penis and (b)
penetrating her vulva with his penis while IT2 BS “was incapable
of consenting to the sexual act due to impairment by an intoxi-
cant, and that condition was known or reasonably should have
been known by” Appellee.



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            United States v. Pease, No. 16-0014/NA
                     Opinion of the Court

      either alone or in conjunction with the other evi-
      dence in this case, may cause a reasonable doubt as
      to whether the accused knew or reasonably should
      have known that the alleged victims were incapable
      of consenting to the sexual acts due to impairment
      by an intoxicant.
      “Consent” means a freely given agreement to the
      conduct at issue by a competent person….
      Lack of consent may be inferred based on the cir-
      cumstances. All the surrounding circumstances are
      to be considered in determining whether a person
      gave consent, or whether a person did not resist or
      ceased to resist only because of another person’s ac-
      tions. A sleeping, unconscious, or incompetent per-
      son cannot consent to a sexual act.
The military judge did not instruct the members about the
meaning of “incapable of consenting.”
    During panel deliberations, the members requested
guidance on the meaning of the word “competent” by asking,
“Is there a legal definition of a competent person?” Appellee
proposed that the military judge use the definition of “com-
petent” from Black’s Law Dictionary—“a basic [or] minimal
ability to do something.” The Government took the position
that the members should “figure it out” by applying the
plain meaning of the word. The military judge followed the
Government’s “figure it out” approach and instructed the
members as follows:
         Members, the counsel and I have discussed it.
      There is no definition within this statute. Okay?
      We can look to other sources. We can look to other
      statutes. We can look to legal dictionaries, but
      those may provide definitions that are inapposite to
      the statute in this case, so when a statute does not
      give a definition then it’s up to the reader to just
      employ the plain and ordinary meaning of the
      words. Okay? So whatever it means to you based on
      your experience, understanding and vocabulary
      lessons from elementary school, whatever it may
      be, the court’s not able to give you a more precise
      legal definition under this statute because there is
      not one. Okay?
      So I just admonish you to go back and read the el-
      ements of the offenses. Read the definitions and the
      other instructions that I provided you for all of the


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             United States v. Pease, No. 16-0014/NA
                      Opinion of the Court

       Charges and Specifications and you’re going to ---
       nobody said this was going to be easy. You’re going
       to have to make a determination based on the law
       as I have instructed you. Okay?
After receiving these instructions, the members returned
findings of guilty for the sexual assault and abusive sexual
contact specifications.
    At the CCA, Appellee challenged the factual sufficiency
of, inter alia, his sexual assault and abusive sexual assault
convictions. Before evaluating for factual sufficiency, the
CCA defined four terms from Article 120, UCMJ:
       (1) “[A] ‘competent’ person is simply a person who
           possesses the physical and mental ability to
           consent.”
       (2) “An ‘incompetent’ person is a person who lacks
           either the mental or physical ability to consent
           due to a cause enumerated in the statute.”
       (3) “To be able to freely give an agreement, a per-
           son must first possess the cognitive ability to
           appreciate the nature of the conduct in ques-
           tion, then possess the mental and physical abil-
           ity to make and to communicate a decision re-
           garding that conduct to the other person.”
       (4) A person is “incapable of consenting” when she
           “lack[s] the cognitive ability to appreciate the
           sexual conduct in question or the physical or
           mental ability to make and to communicate a
           decision about whether [she] agree[s] to the
           conduct.”
Pease, 74 M.J. at 770. Examining the evidence presented at
trial in light of these definitions, the CCA found the evidence
factually insufficient to support the sexual assault and abu-
sive sexual contact convictions. The CCA reached this con-
clusion based on two grounds: the Government failed to
prove beyond a reasonable doubt that ITSN SK and IT2 BS
were incapable of consenting, and the Government failed to
prove beyond a reasonable doubt that Appellee knew or rea-
sonably should have known that they were incapable of con-
senting. 3 Id. at 770–71. As a result, the CCA set aside the

   3 We preliminarily address the argument raised in Ap-
pellee’s brief that the law of the case doctrine requires us to


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            United States v. Pease, No. 16-0014/NA
                     Opinion of the Court

findings of guilty for the Article 120, UCMJ, offenses and
dismissed the Article 120, UCMJ, specifications. Pease,
74 M.J. at 771. TJAG then certified the two questions cited
above, which we now consider. In doing so, we conduct a de
novo review of the issues presented. United States v. Paul,
73 M.J. 274, 277 (C.A.A.F. 2014) (“This Court reviews ques-
tions of law de novo.”).
                       II. Discussion
                     A. Certified Issue I
    The first certified issue requires us to determine wheth-
er, in the course of conducting its Article 66(c), UCMJ, fac-
tual sufficiency review, the CCA had the authority to define
statutory terms that were not defined at trial. The Govern-
ment argues that it was improper for the CCA to consider
definitions of legal terms that were not instructed upon by
the military judge or considered by the members. Specifical-
ly, the Government claims that the CCA’s actions constitut-
ed consideration of both extra-record matters and a legal
theory not presented to the panel. We reject the Govern-
ment’s arguments.



leave the CCA’s decision undisturbed. Specifically, Appellee
asserts that the law of the case doctrine applies because the
certified issues submitted by TJAG only address one, rather
than both, of the grounds upon which the CCA based its fac-
tual insufficiency findings. We have long held that we will
not review certified issues when “[p]ractically speaking, any
action which we might take with respect to the certified is-
sues would not materially alter the situation presented with
respect either to the accused or the Government.” United
States v. Gilley, 14 C.M.A. 226, 226–27, 34 C.M.R. 6, 6–7
(1963); see also United States v. Morita, 74 M.J. 116, 123 n.7
(C.A.A.F. 2015). However, that is not the situation presented
here. The question raised in the second certified issue about
whether the CCA properly defined the phrase “incapable of
consenting” is fundamental to both of the CCA’s factual in-
sufficiency findings. See Pease, 74 M.J. at 770. We therefore
conclude that Appellee’s argument concerning the law of the
case doctrine is without merit.




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             United States v. Pease, No. 16-0014/NA
                      Opinion of the Court

   Article 66(c), UCMJ, requires the Courts of Criminal Ap-
peals to conduct a factual sufficiency review by determining
whether the evidence at trial proves an appellant’s guilt be-
yond a reasonable doubt. United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002); United States v. Turner,
25 M.J. 324, 324–25 (C.M.A. 1987). When conducting this
review, the Courts of Criminal Appeals are “limited to the
evidence presented at trial,” United States v. Beatty, 64 M.J.
456, 458 (C.A.A.F. 2007), but their “application of the law to
the facts must … be based on a correct view of the law.”
United States v. Leak, 61 M.J. 234, 242 (C.A.A.F. 2005) (em-
phasis added) (citation omitted) (internal quotation marks
omitted).
    In light of this responsibility, the CCA first needed to de-
termine the correct, applicable law in this case in order to
properly conduct its factual sufficiency analysis. The fact
that the CCA found it necessary to consider legal definitions
not expounded upon at trial does not constitute considera-
tion of matters outside the record or consideration of a new
legal theory, but instead represents a permissible act within
the CCA’s Article 66(c), UCMJ, authority. We therefore an-
swer the first certified issue in the negative.
                     B. Certified Issue II
    The second certified issue requires us to determine
whether the CCA properly defined the statutory term “inca-
pable of consenting.” In the course of doing so, we note that
we interpret words and phrases used in the UCMJ by exam-
ining the ordinary meaning of the language, the context in
which the language is used, and the broader statutory con-
text. See United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F.
2015); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997).
   The CCA developed its definition of “incapable of con-
senting” by determining the meaning of three Article 120,
UCMJ, terms—“competent,” “incompetent,” and “freely giv-
en agreement.” Pease, 74 M.J. at 770. The Government chal-
lenges the CCA’s definitions of all four terms. Therefore, we
will examine each one in turn.
  First, the CCA defined a “competent person” as “a person
who possesses the physical and mental ability to consent.”


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             United States v. Pease, No. 16-0014/NA
                      Opinion of the Court

Id. This definition properly incorporates three statutory re-
quirements: (1) the person must be “competent” to consent,
Article 120(g)(8)(A), UCMJ; (2) the person cannot consent if
she is asleep or unconscious, Article 120(g)(8)(B), UCMJ;
and (3) the person is incapable of consenting if she is im-
paired by a drug, intoxicant, or other substance, or if she is
suffering from a mental disease or defect or physical disabil-
ity, Article 120(b)(3)(A), (B), UCMJ. We therefore agree with
the CCA’s definition of a “competent person.”
   Second, the CCA defined an “incompetent” person as one
“who lacks either the mental or physical ability to consent
due to a cause enumerated in the statute.” Pease, 74 M.J. at
770. We conclude that the CCA properly defined this term. 4
    Third, the CCA defined a “freely given agreement” as oc-
curring when a person “first possess[es] the cognitive ability
to appreciate the nature of the conduct in question, then
posess[es] the mental and physical ability to make and to
communicate[ 5] a decision regarding that conduct to the
other person.” Id. We note that the statutory phrase “freely
given agreement” reflects the voluntariness aspect of con-
sent. However, the CCA’s definition of that phrase may be
viewed as not accounting for those situations where a victim
has the ability to appreciate the conduct, and the mental
and physical ability to communicate the decision, but does
not articulate non-consent out of fear or due to some other
external compulsion counteracting voluntariness. Neverthe-
less, we conclude that any imprecision does not constitute
reversible error because, as demonstrated immediately be-
low, the CCA’s definition of “incapable of consenting,” which
ultimately is the heart of the matter before us, adequately
addresses the concept of voluntariness.
   Fourth and finally, using the three definitions developed
above, the CCA defined “incapable of consenting” as

   4 See Random House Webster’s Unabridged Dictionary 967 (2d
ed. 2001) (defining “incompetent” as “not competent”).
   5 The CCA’s definitions of “freely given agreement” and “inca-
pable of consenting” both include the phrase “to make and to
communicate a decision.” As we explain below, we conclude that
the CCA’s definitions should refer to the ability to make or to
communicate a decision.



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              United States v. Pease, No. 16-0014/NA
                       Opinion of the Court

“lack[ing] the cognitive ability to appreciate the sexual con-
duct in question or [lacking] the physical or mental ability to
make and to communicate a decision about whether they
agreed to the conduct.” Id. As is evident, the CCA correctly
defined “incapable” as meaning the victim “lacked the ...
ability to.” 6 In regard to its definition of “consent,” the CCA
essentially adopted the meaning of that term as provided
under Article 120, UCMJ: “[C]onsent means a freely given
agreement to the conduct at issue by a competent person.”
Article 120(g)(8)(A), UCMJ. Thus, we conclude that the
CCA’s inclusion of the phrase “whether they agreed to the
conduct” adequately incorporates into the definition of “in-
capable of consenting” the voluntariness component of con-
sent, and we further conclude that the definition is correct
with the exception of an apparent scrivener’s error ad-
dressed below.
    As evidenced by the second certified question, the Gov-
ernment argues that there are two problems with the CCA’s
“incapable of consenting” definition. First, the Government
asserts that this definition improperly limits prosecutions to
only those situations where a putative victim had “an inabil-
ity to appreciate the conduct” or had an “inability to make
and communicate” an agreement. Second, the Government
avers that the CCA’s definition increases the Government’s
burden of proof by requiring the victim to be unable both to
make a decision and to communicate a decision. We do not
find either of these arguments dispositive of the issues be-
fore us.
    We first note that the CCA’s definition of “incapable of
consenting” was properly based on the ordinary meaning of
the phrase, the context in which it was used, and the broad-
er statutory context. See Schloff, 74 M.J. at 314. Moreover,
we find no basis to conclude that the CCA’s definition was
otherwise incorrect, unnecessarily restrictive, or incon-
sistent with statutory intent. Therefore, the CCA’s definition
of this phrase withstands legal scrutiny, and arguments

   6    See Merriam-Webster Unabridged Online Dictionary,
http://unabridged.merriam-webster.com/unabridged/incapable
(last visited Mar. 8, 2016) (defining “incapable” as “lacking capaci-
ty, ability, or qualification for the purpose or end in view”).



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            United States v. Pease, No. 16-0014/NA
                     Opinion of the Court

about whether the definition is broad enough for the Gov-
ernment’s prosecutorial purposes are unavailing.
    In regard to the Government’s second argument, we
agree that the CCA’s definition of “incapable of consenting”
should have stated that a victim must have the ability “to
make or to communicate a decision” rather than “to make
and to communicate a decision.” Pease, 74 M.J. at 770 (em-
phasis added). However, this apparent scrivener’s error did
not constitute reversible error in the instant case because
the CCA’s factual sufficiency analysis for the offenses involv-
ing IT2 BS and ITSN SK actually applied the “to make or to
communicate” standard. For example, the CCA stated it was
not persuaded “beyond a reasonable doubt that somewhere
in between [ITSN SK kissing Appellee and supporting her
own weight while engaging in sexual intercourse with Ap-
pellee] she had become manifestly unaware of what was
happening or unable to make or to communicate decisions.”
Id. at 771 (emphasis added). The CCA also indicated that it
applied this “to make or to communicate” standard when
analyzing factual sufficiency for the offenses involving IT2
BS because immediately after the ITSN SK analysis, the
CCA found “[s]imilar concerns apply to IT2 BS.” Id. We
therefore conclude that although the Government is correct
that the “to make or to communicate” standard is the proper
one, the Government is incorrect in arguing that the CCA
actually used the “to make and to communicate” standard.
Therefore, no reversible error resulted in the instant case.
    For the reasons cited above, we answer the second certi-
fied issue in the negative.
                        III. Decision
       We conclude that the CCA acted within its Article
66(c), UCMJ, authority to define statutory terms before con-
ducting its factual sufficiency review, and that in the course
of conducting its factual sufficiency analysis, the CCA ap-
plied the proper definition of “incapable of consenting.” The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is therefore affirmed.




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