UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                                Specialist JOHN T. GOETZ
                               United States Army, Appellant

                                        ARMY 20130744

                          Headquarters, 7th Infantry Division
                     David L. Conn, Military Judge (arraignment)
                               Jeffery D. Lippert (trial)
              Lieutenant Colonel Michael S. Devine, Staff Judge Advocate


For Appellant: Captain Patrick A. Crocker, JA; William E. Cassara, Esquire (on
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).


                                       22 December 2015
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of abusive sexual contact, one
specification of unlawful entry 1, and one specification of incapacitation for duty as a
result of wrongful prior overindulgence in intoxicating liquors, in violation of
Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920 and 934 (2012). The court-martial
sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of all pay and allowances, and reduction to the grade of E-1.



1
  Appellant was convicted of unlawful entry (a violation of Article 134, UCMJ) as a
lesser-included offense of the charged burglary (Article 129, UCMJ).
GOETZ—ARMY 20130744

      On appeal, appellant raises three assignments of error, one of which merits
discussion but no relief. Additionally, we find one additional error which warrants
both discussion and relief.

                                 I. BACKGROUND

       Appellant was a chaplain’s assistant. On 21-23 September, 2012, appellant
assisted in putting on a conference by the Fort Lewis chaplaincy. The conference,
“Strong Bonds,” was designed to help married service members respond to the stress
of deployment. The conference was held in a hotel in Tacoma, Washington.
Conference organizers and participants stayed at the hotel.

      Mrs. RS, the civilian spouse of a deployed warrant officer, attended the
conference in order to meet new friends and grow spiritually. On 22 September
2012, at around 2130 hours, and after the day’s conference events, Mrs. RS went
down to the hotel bar to meet some friends because she heard a rumor that singer
Tim McGraw was staying in the hotel and she hoped to catch a glimpse of him.
Instead, she ran into appellant, whom she knew from his role in helping to run the
conference.

       Appellant and Mrs. RS chatted and drank, and at some point were joined by
her friends Mrs. TW and Mr. LW. Around midnight, the hotel bar was closing,
apparently without any Tim McGraw sightings, so they discussed going to a nearby
sports bar. Mrs. TW warned Mrs. RS to not go. To which Mrs. RS responded, “I’m
with a gay man and a chaplain’s assistant. I can’t get any safer than this going out.”

       Appellant, Mrs. RS, and Mr. LW stayed at the second bar for about an hour.
Mrs. RS testified that she had about four and a half alcoholic drinks during the
course of the night and that appellant had about five. As they were talking and
drinking at the second bar, appellant put his hand on Mrs. RS’s knee, which she
removed after some time. He placed his hand back on her knee, and she removed it
again.

        When they left the bar, they returned to the hotel and continued to talk. At
around 0200 hours, the three decided to call it a night and headed to their hotel
rooms. After getting off the elevator on her floor, as Mrs. RS was fumbling in her
pocket to find her room key, she felt a tap on her shoulder. She was surprised to see
appellant, as his room was several floors above. When she asked appellant why he
was there, he responded that he just wanted to make sure that she got to her room
alright. Mrs. RS couldn’t find her room key so she and appellant went down to the
first floor to get a new room key.

       As Mrs. RS got off the elevator for the second time, appellant again followed
her to her room and again surprised her by tapping on her shoulder. Appellant asked



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GOETZ—ARMY 20130744

Mrs. RS for a hug, and noted that she had given her friend Mr. LW a hug at the end
of the night. Mrs. RS gave him a hug, but after a few seconds, when she went to
back away, appellant continued the embrace. Mrs. RS testified that the hug ended
when she told appellant that she was happily married for 22 years, that she didn’t
“do this,” and that he needed to leave.

      Once in her room alone, Mrs. RS sent her husband an email. She admitted to
being “bombed” and not being able to see straight she was so intoxicated. In the
email (verbatim excerpt provided below) she also told her husband that:

             [T]he chaplains asst was way to mice. i think when he
             escorted me to my room to make sure i was safe, he
             hugged me just a little TOO LONG. i don’t know if he
             was ex;ecting more, but i am here alkone going to pass out
             now. i love you and didn’t do anything I wasn’t supposed
             to. chocolate martinis are great.

      Mrs. RS testified that after she fell asleep, she was awoken by appellant
tapping on her hotel room door. She put on a bathrobe, opened the door, and told
appellant to go back to bed. Mrs. RS then went back into her room, took off her
bathrobe, crawled into bed, and again fell asleep. She testified that she did not shut
the door, but rather released it to let it close on its own.

       Mrs. RS was awoken again by someone saying her name. Startled, she rolled
over and came face to face with appellant. As she looked at appellant’s face about
six inches from hers, she thought “this is how I’m going to get raped.”

       She testified that appellant then hooked his leg on top of her and put a hand
on each of her shoulders and started lowering his weight onto her. Remembering a
television show she once saw, Mrs. RS yelled at him and pushed appellant as hard as
she could with both arms and one leg and then started swinging at him. After
appellant got off the bed she told him that she had been married 22 years and “he
was not doing this to [her] or [her] husband or our marriage.” She testified that
appellant then walked back towards her, put his finger in her face and said he was
just testing her to see if she was a faithful wife. Appellant then left Mrs. RS’s room.

       Appellant also testified at trial and agreed there was a night of drinking,
followed by an awkward hug at the end. Appellant, however, claimed he never
returned to Mrs. RS’s room and called an alibi witness, Specialist MA, who testified
that she was with appellant in his room during the alleged assault of Mrs. RS.

       When the conference began at 0800 the next morning, appellant was not
present for duty. When appellant still had not shown by 0930, the chaplain in charge
of the conference asked a conference participant to go and get appellant. When



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appellant eventually reported for duty at 1000 hours, the chaplain stated he could
smell alcohol on him from a distance of six feet and that appellant appeared to be
suffering from a hangover. He also stated that he should have given appellant a
breathalyzer. However, the chaplain also testified that appellant did not act
intoxicated and, after reporting for work, appellant was immediately able to perform
his duties, and that he had no problem with the quality of appellant’s work.

                                   II. DISCUSSION

            A. Unlawful Entry as a Lesser-Included Offense of Burglary.

       Although not raised by appellant, we find the military judge committed plain
error when he instructed the panel that they could find appellant guilty of unlawful
entry as a lesser-included offense of burglary.

       At trial, the military judge informed the parties that he identified both
housebreaking (a violation of Article 130, UCMJ) and unlawful entry (a violation of
Article 134, UCMJ) as lesser-included offenses of burglary (a violation of Article
129, UCMJ). Although defense counsel admitted that the lesser offenses had been
raised, they specifically requested that the lesser offenses not be instructed on.
During the discussion, the military judge and both parties specifically discussed how
to instruct on the terminal element to the unlawful entry. However, there was not
discussion regarding whether the existence of the Article 134 terminal element
barred the possibility of it being a lesser-included offense of the Article 129 offense.
The military judge instructed on both lesser-included offenses, to include all
elements and relevant definitions. The panel acquitted appellant of burglary and
housebreaking, but found him guilty of unlawful entry.

       “Whether an offense is a lesser-included offense is a question of law that is
reviewed de novo.” United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)
(citing United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011)). “Because there
was no objection to the instruction at trial, we review for plain error.” Id. (citing
United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)). Under a plain error
analysis, an 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 accused.” Girouard, 70 M.J. at 11.

        As appellant did not raise this issue at trial or on appeal, appellant has failed
to meet his plain error burden. However, we nonetheless reach this issue under our
“highly discretionary” authority under Article 66(c) to approve only those findings
that “should be approved.” United States v. Butcher, 56 M.J. 87, 93 (C.A.A.F. 2001)
(it is “the duty of the Courts of Criminal Appeals to ‘affirm only such findings of
guilty, and the sentence . . . as it . . . determines, on the basis of the entire record,
should be approved.’”).



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GOETZ—ARMY 20130744

        This court applies the “elements test” to determine whether one offense is a
lesser-included offense of another. United States v. Jones, 68 M.J. 465, 468
(C.A.A.F. 2010). Under the elements test, one compares the elements of each
offense. “If all of the elements of offense X are also elements of offense Y, then X
is a lesser-included offense of Y. Offense Y is called the greater offense because it
contains all of the elements of offense X along with one or more additional
elements.” Id. at 470.

       Unlawful entry, as with all Article 134 offenses, includes as the terminal
element that the conduct was prejudicial to good order and discipline or was of a
nature to bring discredit upon the armed forces. Accordingly, unlawful entry is not
a lesser-included offense of burglary under Article 129 or housebreaking under
Article 130.

       Having found error, we also find that this error was plain and obvious. This
case was tried in 2013, more than three years after the shift in lesser-included
offense jurisprudence caused by Jones. 68 M.J. at 471. Similarly, the central
holding in our superior court’s decision in United States v. Fosler, 70 M.J. 225
(C.A.A.F. 2011), requires the government to allege the terminal element in all
Article 134 offenses. That holding, which also applies here as the terminal element
was not charged, also altered military justice practice, and is well known as it
touched cases at nearly every stage of the court-martial process.

       Finally, in light of the defense’s specific request to not instruct on any
lesser-included offenses, we find this error was to the substantial prejudice of the
accused.

      Accordingly, we will set aside the finding of guilty of the Specification of
Charge I and Charge I and provide relief in our decretal paragraph.

 B. Legal Sufficiency – Incapacitation for Duty Due to Wrongful Overindulgence of
                                      Alcohol

     The elements of being incapacitated for performance of duties through
wrongful prior indulgence in intoxicating liquor are as follows:

          1) That appellant had certain duties to perform;

          2) That appellant was incapacitated for the proper
             performance of such duties;

          3) That such incapacitation was the result of previous
             wrongful indulgence in intoxicating liquor or any drug;
             and


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          4) That under the circumstances, the conduct of appellant
             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.
Manual for Courts-Martial, United States, (2012 ed.) [hereinafter MCM], pt. IV, ¶
76.b.

       On appeal, appellant argues the evidence supporting that specification is
legally insufficient because upon reporting for duty two hours late, appellant was
able to perform all assigned tasks. The Supreme Court stated that in reviewing for
legal sufficiency of the evidence, “the relevant question” an appellate court must
answer is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011).

       As the military judge instructed, a person is incapacitated for duty if they are
“unfit” or “unable” to perform duties. 2 See MCM, pt. IV, ¶ 76.c.(2). One is
“unable” to perform duties if, for example, he cannot perform duties because of an
illness caused by prior intoxication. Id. Although not addressed by either party, a
person is “unfit” if at the time the duties are to commence the person is drunk even
though physically able to perform the duties. Id. “Drunk” means any intoxication
which is sufficient to impair the rational and full exercise of the mental or physical
faculties. MCM, pt. IV, ¶ 35.c.(6). Thus, one is incapacitated for duty if 1) he is
drunk, or 2) he is unable to perform duties because of previous alcohol consumption.

       We agree with appellant that once he reported, he was able to perform
assigned duties. This, however, does not address whether appellant was unfit to
perform duties during the entire morning, or whether he was unable to perform
duties from 0800 to 1000 hours. Put differently, could a reasonable panel find that
on the morning in question, appellant was drunk (i.e. unfit) or that he was unable to
perform duties before 1000 hours because of his prior drinking?

       Viewing the evidence in a light most favorable to the prosecution, we answer
the question in the affirmative. First, there was substantial evidence which the panel
could credit that appellant drank significant amounts of alcohol the night prior. Mrs.
RS testified that appellant was already drinking when she encountered him at the
hotel bar. For the rest of the night, appellant matched Mrs. RS drink for drink. She
described appellant as slurring his words and stumbling at the end of the night.


2
 For a discussion on the difference between drunk on duty under Article 112,
UCMJ, and being incapacitated for duty under Article 134, see United States v.
Hoskins, 29 M.J. 402 (C.A.A.F. 1990).


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Additionally, appellant’s conduct in Mrs. RS’s room does not reflect acts made after
sober contemplation.

      After being awakened, appellant testified that he showered, brushed his teeth,
and changed. Nonetheless, upon appellant’s arrival for duty, the chaplain testified
he could smell the alcohol on appellant at a distance of six feet, and that he should
have given appellant a breathalyzer. There was evidence to which the panel could
reasonably attach credit that appellant was drunk or “unfit” to perform duty on the
morning of 23 September 2012.

       Additionally, it was unquestioned that at 0800, the time appellant’s duties
were to commence, he was “unable” to perform duties. Appellant himself testified
that after being out late at night drinking he didn’t set an alarm before going to bed
and therefore overslept. Appellant was asleep at 0800, and clearly a soldier who is
asleep is incapable of performing his duties. A reasonable panel could have found
that the reason (i.e. proximate cause) of appellant’s failure to set an alarm and
therefore oversleep was because of the prior night’s overconsumption of alcohol.
Additionally, having heard appellant’s testimony and being able to judge his
credibility, the panel was free to reject appellant’s alarm clock explanation and find
that his testimony was substantive evidence of guilt. United States v. Pleasant, 71
M.J. 709, 713 (Army Ct. Crim. App. 2012) (citing United States v. Williams, 390
F.3d 1319, 1325 (11th Cir. 2004) (An accused testifies at his own peril, and when he
chooses to testify, “he runs the risk that if disbelieved the [panel] might conclude
the opposite of his testimony is true.”)).

      Accordingly, we find the evidence is legally sufficient to affirm the panel’s
findings. 3

                                 III. CONCLUSION

       The military judge abused his discretion when he instructed on the lesser-
included offense of unlawful entry. As but for this error appellant would have been
acquitted, this error was not harmless by any standard. The findings of guilty to
Charge I and its Specification are set aside and that charge and specification are
DISMISSED.

       Having reviewed the entire record, the remaining findings of guilty are correct
in both fact and law and are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by


3
 Although we only address legal sufficiency, we also find the evidence is factually
sufficient.


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GOETZ—ARMY 20130744

appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape that might cause
us pause in reassessing appellant’s sentence. Further, although appellant was tried
and sentenced by a panel, the nature of the remaining offenses still captures the
gravamen of the original offenses and the circumstances surrounding appellant’s
conduct. Finally, based on our experience, we are familiar with the remaining
offenses so that we may reliably determine what sentence would have been imposed
at trial.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM only so much of the sentence as provides for a bad-conduct
discharge, four months of confinement, and forfeiture of all pay and allowances. We
find this reassessed sentence is not only purged of any error but is also appropriate.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings and sentence set aside by our decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge HAIGHT and Judge PENLAND concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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