UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, FEBBO, and SCHASBERGER
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                        Staff Sergeant FRANCISCO C. LARA
                            United States Army, Appellant

                                     ARMY 20170025

                               Headquarters, I Corps
                      Sean Mangan, Military Judge (arraignment)
                        Kenneth Shahan, Military Judge (trial)
                   Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA (argued); Lieutenant
Colonel Christopher D. Carrier, JA; Captain Cody Cheek, JA (on brief); Lieutenant
Colonel Christopher D. Carrier, JA (on reply brief).

For Appellee: Captain Jessika M. Newsome, JA (argued); Lieutenant Colonel Eric
K. Stafford, JA; Major Hannah E. Kaufman, JA; Captain Jessika M. Newsome, JA
(on brief).


                                    27 December 2018
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

      Appellant’s court-martial proceeded smoothly enough until, during the
presentencing phase of trial, the military judge sua sponte decided to re-instruct the
panel and attempted to reopen deliberations on findings. A fiasco ensued. We
LARA—ARMY 20170025

intervened. See United States v. Shahan, 2016 CCA LEXIS 740 (Army Ct. Crim.
App. 23 December 2016) 1.

       The dust has settled and the case is now again before us under Article 66,
UCMJ. 2 As such, we now analyze the proceedings to determine if the military judge
erred in failing to instruct the panel on the voluntary intoxication defense.

                                  BACKGROUND

                                   A. The Assault

       This case began with a training conference in Las Vegas. Appellant and other
noncommissioned officers (NCOs) were approved to attend the conference. Sergeant
(SGT) SR was a U.S. Army Reserve soldier newly assigned to the unit who also
wanted to attend the conference. She did not, however, have a government credit
card on which to charge her hotel room. Appellant did not want to give up his hotel
room to share with another male soldier. Instead, appellant offered to give up one of
his beds and share his room with SGT SR. Appellant was married and SGT SR was
engaged to be married. Appellant and SGT SR had no prior relationship and SGT
SR had no romantic interest in appellant.

       One evening in Las Vegas, SGT SR, Staff Sergeant (SSG) CP, and appellant
went out to have dinner, drink alcohol, and gamble. Based on the video footage
from security cameras and room key cards used in appellant’s hotel, there is a very
specific timeline for the evening. The three soldiers went out at 1830 and returned
to the hotel room around 0140. Based on the testimony of SGT SR and SSG CP, the
evidence established that appellant drank approximately six shots of hard liquor and
a twenty-four-ounce mixed drink. Appellant did not drink any beers. Sergeant SR
drank approximately five shots, a twenty-four-ounce mixed drink, and several beers.


1
  This court found that Rule for Courts-Martial 924 was clear and that deliberations
could not be reopened after announcement of findings in open court. We issued a
writ of prohibition and returned the record of trial to the military judge. The
military judge denied the appellant’s motion for a mistrial and resumed
presentencing proceedings.
2
  Contrary to his pleas, before a panel with enlisted representation, appellant was
convicted of one specification of sexual assault, in violation of Article 120, Uniform
Code of Military Justice [UCMJ], 10 U.S.C. § 920 (2012). The convening authority
approved appellant’s adjudged sentence of a dishonorable discharge, hard labor
without confinement for thirty days, and reduction to the grade of E-1.




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        When SGT SR and appellant returned to the room, appellant slept on the bed
and SGT SR slept on the floor. She wanted to stop “the room from spinning.” At
around 0300, SGT SR woke up with appellant behind her on the floor. He was
inserting his finger in and out of her vagina. Sergeant SR objected and immediately
left the room. Sergeant SR reported the sexual assault to hotel security. She also
reported the sexual assault to the NCOIC of the group attending the conference.

       Around 0530, after making a written report to hotel security, SGT SR made
her own arrangements to fly out of Las Vegas and returned home. Her commander
took her to the hospital for a sexual assault medical forensic exam. After the
assault, appellant told another soldier that he was lying on his bed when SGT SR
woke-up, started yelling, and he “didn’t know why or what happened.” Appellant
texted another NCO and stated he was “all sorts of fucked up.”

                         B. The Opposing Theories at Trial

       At trial, the government’s theory was that SGT SR was drinking alcohol and
was drunk earlier in the night. The government argued that at the time of the sexual
assault, the appellant knew or should have known SGT SR was asleep, unconscious,
or otherwise unaware. However, she was not blacked out and was awakened by
appellant’s penetrating her vagina with his finger. Sergeant SR testified appellant
was moving his finger in and out of her vagina.

       The government presented testimony from other witnesses that SGT SR
contacted after the assault. Although she was initially crying heavily after the
assault, the government presented evidence that she could clearly recall all the
details of the assault. Security guards testified that SGT SR did not appear to be
intoxicated when they interacted with her and she completed the written report.
Sergeant SR was a very credible witness.

      The strongest evidence of appellant’s voluntary intoxication was offered by
the government, not the defense. At the same time, the government presented
evidence that appellant was not so severely intoxicated that he was incapable of
forming the specific intent for the sexual act. Video evidence was introduced
showing appellant walking back to his room around 0142. Appellant was not
stumbling and appeared cognizant of his surroundings. Another guard testified that
appellant had red, glassy eyes but did not sway and was able to understand all the
guard’s directions.

       The prosecution offered into evidence a form appellant signed when he was
asked to leave the hotel. The prosecution offered the form under the theory that it
demonstrated appellant was able to follow instructions and fill out documents in “a
neat and orderly way” shortly after the assault. The government explained this
“goes to show his ability to formulate intent.” Appellant objected to the admission



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of the form on relevancy grounds. 3 The military judge sustained the defense
objection to the admission of the form under Military Rule of Evidence 403.

       Around 0500, because appellant had to move to another hotel, one of the
NCO’s gave appellant the keys to the rental car to drive to the new hotel. Several
hours later, appellant went to breakfast with the other NCOs and then attended the
conference.

       The defense theory was that the sexual assault never occurred and SGT SR
was creating false memories based on an alcohol induced blackout. The defense
argued that SGT SR was extremely drunk, had a faulty memory, and could not
credibly remember what happened in the room. The defense counsel pointed out
inconsistencies in SGT SR’s statements after the assault. The defense highlighted
the lack of DNA or other physical evidence to corroborate SGT SR’s testimony. A
defense expert testified that alcohol affects memory and SGT SR could have been
blacked out at the time she was in the room. 4 Therefore, the defense focused on
evidence tending to maximize SGT SR’s level of intoxication.

       At the same time, the defense also minimized any evidence of appellant’s
intoxication. The defense counsel never argued about appellant’s level of
intoxication during opening or closing on the merits. Through cross-examination,
the defense counsel elicited testimony from a security guard that when she went to
appellant’s room shortly after the assault, appellant was cooperative and respectful.

                     C. Instructions and Voluntary Intoxication

       The military judge discussed proposed instructions on findings with trial and
defense counsel. The trial counsel suggested an instruction on an Article 128,
UCMJ, offense in case the panel found appellant lacked specific intent due to
intoxication. The defense objected to any Article 128, UCMJ, instruction and the
military judge agreed. The defense counsel did not request a voluntary intoxication
instruction. The defense counsel explicitly agreed it was not appropriate to give the
panel a mistake of fact instruction on whether appellant was aware SGT SR was


3
  The government argued this line of questioning was relevant because the
government had to establish appellant had the specific intent and “it’s a conceivable
defense theory that the accused is so intoxicated, he is unable to formulate intent.”
4
  Appellant offered expert testimony that an average person processes one drink of
alcohol an hour. Applying that formula to the Las Vegas evening, an average person
would have metabolized approximately seven drinks between 1830 and 0140.




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asleep. The defense counsel agreed a mistake of fact instruction was not raised by
the evidence. The military judge discussed special defenses and stated he did not
think any “actual legal defenses” were raised by the evidence. The defense counsel
did not object to the proposed instructions and agreed with the military judge that no
instructions on special defenses were raised by the evidence.

       The military judge instructed the panel and again asked if the parties had any
objections to the instructions. Neither the government nor defense counsel objected
or requested additional instructions.

       During deliberations, the panel had one question: “If the assailant of sexual
assault is unaware of what he or she is doing, is the incident still considered a
wrongful offense?” The military judge and counsel discussed the response to the
question. The military judge suggested re-reading the definition of a sexual act and
that an accused had to have the intent to abuse, humiliate, harass, or degrade any
person or to arouse and gratify the sexual desires of any person. The military judge
asked counsel if they agreed and whether any other explanation was necessary or
appropriate. Both counsel agreed with the response to the panel’s question and both
counsel responded that no further explanation was necessary or appropriate.

       The military judge answered the panel’s question by repeating the definition
of “sexual act.” After repeating the definition of “sexual act,” the military judge
further addressed the members as follows: “So, in other words there is an intent
requirement embedded in that definition [of ‘sexual act’]. Does everybody
understand that?” All the members answered affirmatively. The military judge then
asked the panel president: “Does that answer your question?” The president
responded that it did answer the panel’s question.

      Appellant was found guilty of one specification of sexual assault for
penetrating SGT SR’s vulva with his finger when appellant knew or reasonably
should have known she was asleep, unconscious, or otherwise unaware that the
sexual act was occurring.

                   D. Appellant’s Unsworn Statement During Sentencing

       During the sentencing phase of trial, appellant made an unsworn statement in
the form of questions and answers from his defense counsel. Appellant explained to
the panel that he considered testifying in his own defense on the merits. He did not,
however, because he drank so much alcohol, he did not have memories of the night.
Appellant explained he would only have been able to testify that he could not
remember anything.

     He was surprised by SGT SR’s testimony and apologized for hurting her.
According to appellant, however, he did not have enough memory to state if the



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assault actually occurred. At the same time, he could say he never intended
anything to have happened and any actions were out of character. Appellant
explained he is not a big drinker and had never drank that much in his life.

      After the appellant’s unsworn statement, the defense rested. The court
recessed for the evening and scheduled deliberations for the next morning.

                    E. The Military Judge Attempts to Reopen Findings

       The next morning, the military judge informed the government and defense
counsel that he should have given an instruction on voluntary intoxication. In his
opinion, he committed “plain error.” 5 The military judge gave the defense counsel
two options. First, appellant could request a mistrial. The second option was for the
military judge to reinstruct the panel on voluntary intoxication and have them return
for deliberations on findings. Defense counsel chose reinstructing the panel and new
deliberations on findings.

       The military judge further stated a mistrial was not warranted. The military
judge stated that the defense theory was not that appellant lacked the requisite
specific intent to commit the offense. Instead, the defense was that appellant never
committed the physical acts alleged and that SGT SR had false memories from an
alcohol-induced blackout. The military judge stated it was highly unlikely the panel
would find appellant penetrated SGT SR’s vulva with his fingers without the intent
to abuse, humiliate, harass, or degrade SGT SR or to arouse or gratify the sexual
desires of any person. However, the military judge wanted to reinstruct them on
voluntary intoxication to resolve any questions the panel had about appellant’s
intoxication.

        The government objected and argued that the defense theory had never been
that appellant was incapable of forming intent. Only during his unsworn statement
after findings, did appellant explain why he did not testify and informed that panel
that he could not remember any part of the evening due to alcohol. The government
also argued that the defense waived the voluntary intoxication instruction during the


5
  The military judge later came to the opposite conclusion and stated he did not
commit “plain error.” The military judge reasoned he would have given the
instruction as a “matter of caution,” but the instruction was not triggered as a
“matter of law” by the evidence. These confusing and contradictory conclusions
highlight the fact that trial judges should not conduct their own appellate-style
review of their rulings. Whether plain error occurred is determined by appellate
courts. A military judge may reconsider his or her prior rulings in a case, but does
not apply appellate standards of review when doing so.




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discussions with the defense counsel about appellant’s level of intoxication and the
discussions about instructions during Rule for Courts-Martial (R.C.M.) 802 sessions.

       Since the panel had already announced findings in open session and the
military judge’s second course of action violated R.C.M. 924, the government
counsel filed a petition with this court seeking a writ of prohibition against the
military judge reopening findings. The government asked for a few hours recess to
determine if this court was going to grant a stay. The military judge denied the
request for a recess and reinstructed the panel on voluntary intoxication.

       The military judge offered the defense counsel the opportunity to reargue
voluntary intoxication but they decided to not argue the issue. The military judge
understood the decision of the defense not to reargue voluntary instruction because
it would completely contradict the theory of their case-in-chief. The military judge
also informed the government he would not allow them to argue against the
voluntary intoxication defense. The military judge prohibited the government
argument since “the government could have basically driven a nail in the coffin of
that defense.”

      Approximately ten minutes after the military judge denied the government’s
request for a recess, this court issued a stay. After oral argument on the writ of
prohibition, this court ruled that R.C.M. 924 prohibited reopening deliberations after
announcement of the findings in open session. We therefore issued a writ of
prohibition against the military judge reopening the findings. Appellant’s court-
martial continued with the presentencing phase of trial.

                              LAW AND DISCUSSION

       Appellant’s sole assignment of error argues the military judge committed
plain error by not sua sponte instructing the panel on voluntary intoxication as it
related to appellant’s ability to form specific intent.

                  A. The Special Defense of Voluntary Intoxication

       Although not listed as a special defense under R.C.M. 916, military courts
have treated voluntary intoxication as a special defense applicable to offenses
requiring specific intent or knowledge of a fact that voluntary intoxication would
negate. See United States v. Hearn, 66 M.J. 770, 776 (Army Ct. Crim. App. 2008)
(citing United States v. Watford, 32 M.J. 176, 178 (C.M.A. 1991). In other words, if
an individual is so thoroughly inebriated that he or she literally does not know what
he or she is doing, the individual’s intoxicated state might be a defense to certain
criminal charges.

      A military judge has a duty to instruct members on any special defenses
placed “in issue.” United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012); R.C.M.


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920(e)(3). A matter is “in issue” when some evidence, upon which the members
might rely if they chose, raises that matter, without regard to its source or
credibility. United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007); United States v.
Watford, 32 M.J. 176, 178 (C.M.A. 1991). This does not, however, mean that every
accused who consumed alcohol prior to committing a specific intent crime is entitled
to a panel instruction on voluntary intoxication. See Watford. 32 M.J. at 178-79.

       As might be expected, ordinary drunkenness typically does not rise to the
level of depriving an individual of his or her basic knowledge of reality or prevent
that individual from forming intent. “[E]vidence that an accused consumed
intoxicants, standing alone, is insufficient to require a voluntary intoxication
instruction.” Hearn, 66 M.J. at 777 (citing Watford, 32 M.J. at 179).

       “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.” United States v. Peterson, 47 M.J.
231, 233-34 (C.A.A.F. 1997) (quoting United States v. Box, 28 M.J. 587, 585
(A.C.M.R. 1989) (emphasis added)).

        This court has previously adopted a three-pronged test for whether “some
evidence” has been admitted of intoxication sufficiently severe as to deprive an
individual of the ability to form intent: “(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.” Hearn, 66 M.J. at 777 (quoting State v.
Kruger, 685, 67 P.3d 1147, 1149 (Wis. Ct. App. 2003)) (alterations original to
Hearn).

       We do not interpret the rule we adopted in Hearn as lowering the threshold
our superior court articulated in Peterson. Hearn’s requirement of evidence that
impairment “affected the defendant’s ability to form the requisite intent or mental
state,” must be read in light of Peterson’s requirement for evidence that any
“intoxication was of a severity to have had the effect of rendering the appellant
incapable of forming the necessary intent.” We do not purport to lower the
evidentiary thresholds established by our superior court.

                               B. Plain Error Analysis

       ‘“Whether a panel was properly instructed is a question of law’ we review de
novo.” United States v. Mott, 72 M.J. 319, 325 (C.A.A.F. 2013) (quoting United
States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2013)). “Failure to object to an
instruction before the members close to deliberate constitutes waiver of the
objection in the absence of plain error.” R.C.M. 920(f). In order to warrant reversal



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as plain error, appellant “has the burden of demonstrating that: (1) there was error;
(2) the error was plain or obvious; and (3) the error materially prejudiced a
substantial right of the [appellant].” Mott, 72 M.J. at 325 (quoting United States v.
Payne, 73 M.J. 19, 23 (C.A.A.F. 2014)). “[F]ailure to establish any one of the
prongs is fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348
(C.A.A.F. 2006). 6

                                          1. Error

       The first prong of the Hearn test is satisfied because the charge of sexual
assault included a specific mens rea. The second prong of Hearn is satisfied
because there is also some evidence appellant was impaired due to alcohol.
Appellant consumed alcohol that evening in Las Vegas. The question of error then
turns on the third prong of Hearn, namely, whether there is “some evidence” that
appellant was not just impaired, but so impaired that he could not form specific
intent. See Hearn, 66 M.J. at 777.

       The best evidence to support appellant’s claim was the testimony of a soldier
who stated that after the assault, SGT SR told him that appellant “didn’t realize what
he was doing at that time.” Whether this speculative, second-hand statement—in the
context of the testimony about appellant’s alcohol consumption—is enough to
support an instruction on voluntary intoxication is a close question. We need not
resolve that close question in this case. Even assuming the military judge committed
error by not instructing the panel on voluntary intoxication, such error was not plain
and obvious, and no such error materially prejudiced appellant’s substantial rights.
We discuss these second and third prongs of plain error review below.



6
  As the appellant did not object to the lack of any instructions on special defenses
and did not request any instructions on special defenses, we apply plain error
analysis to the military judge’s instructions in this case. See United States v.
Guardado, 77 M.J. 90, 93 (C.A.A.F. 2017). We note, however, there is a strong
argument appellant’s counsel affirmatively waived any instruction on voluntary
intoxication because: (1) the defense counsel informed the military judge they
agreed no instructions on defenses were warranted; and (2) when the panel asked a
question about appellant’s mens rea, the defense counsel informed the military judge
they did not request any additional instructions and explicitly agreed to the military
judge repeating the definition of a “sexual act” to the panel. An instruction
suggesting there was evidence that even if appellant committed the charged acts it
was without the requisite specific intent would have been inconsistent with
appellant’s theory of the case. Appellant’s theory was that he never committed the
physical acts SGT SR claimed he did.




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                          2. No Error was Plain or Obvious

       Assuming the balance of the evidence before the military judge crossed the
threshold of “some evidence” that appellant was so intoxicated he could not form the
specific intent to arouse or gratify his sexual desire, it was neither plain nor obvious
that threshold had been crossed. It is significant, though not dispositive, that
appellant did not request such an instruction, even when the military judge
specifically asked about instructions on special defenses. The defense counsel did
not discuss appellant’s level of intoxication during opening or closing statements.
During the government and defense cases-in-chief, defense counsel did not present
evidence of appellant’s intoxication. Defense counsel did not place appellant’s state
of mind at issue or argue appellant’s lack of ability to form specific intent. To the
contrary, defense counsel minimized his level of intoxication and objected to
introduction of some government evidence that would potentially support appellant’s
lack of intoxication. During the motion for a mistrial, the civilian defense counsel
stated he could not point to any testimony directly on point that appellant was so
intoxicated that he could not form specific intent.

       At the time of instructing the panel on findings, the balance of the evidence
pointed to the conclusion that appellant was lucid and competent at the time of the
charged misconduct. Under these circumstances, we simply cannot say it was plain
or obvious the military judge should have given an instruction on a special defense
that was contrary to appellant’s theory of the case and the weight of the evidence
presented. Had the appellant testified on the merits in his own defense to the same
facts he offered in his presentencing unsworn statement, it would have been proper
for the military judge to consider his testimony for the question of whether the
voluntary intoxication instruction was required. We evaluate the military judge’s
instructions on findings, however, in light of the evidence before the military judge
at the time the instructions are given, not in light of evidence later offered for
presentencing purposes.

          3. No Error Materially Prejudiced Appellant’s Substantial Rights

       We also conclude the omission of any instruction on voluntary intoxication
did not materially prejudice appellant’s substantial rights. There was ample
evidence in the record that would have negated the voluntary intoxication defense,
had it been raised. The videos of appellant walking to the hotel room did not show
him to be obviously impaired. When appellant and SGT SR got to the hotel room,
they both prepared to go to sleep and SGT SR testified he did not appear visibly
intoxicated. In order to sexually assault SGT SR, appellant had to leave his bed, get
behind SGT SR on the floor, and place his hand under her shorts and insert his
finger in and out of in her vagina.




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       Very shortly after the assault, appellant was sending grammatically correct
texts to other soldiers explaining what happened or did not happen in the room.
Appellant also interacted with several hotel security guards that observed he was not
intoxicated. They described him as cooperative and respectful and testified he
understood their instructions. A fellow NCO gave appellant the keys to a rental car
for him to drive to another hotel. The NCO was not concerned that appellant was
too impaired by alcohol to operate the vehicle. Appellant drove to the other hotel
and checked-in. Appellant went to breakfast early the next morning with the other
NCOs and attended the conference.

       The totality of the evidence offered on the merits was such that any
reasonable factfinder would have concluded appellant was capable of forming
specific intent at the time of the assault. Thus, even if the military judge had
instructed the panel on voluntary intoxication, it would have made no difference to
the outcome of appellant’s court-martial.

                                  CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                                       FOR THE COURT:




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




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