UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Specialist JESUS M. RODRIGUEZ
                          United States Army, Appellant

                                   ARMY 20150043

                  Headquarters, 8th Theater Sustainment Command
                         Gregory A. Gross, Military Judge
                  Colonel Anthony T. Febbo, Staff Judge Advocate


For Appellant: Major Andres Vazquez, Jr., JA; Major Brian W. Song, JA.

For Appellee: Major Daniel D. Derner, JA.


                                    31 March 2016

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of sexual abuse of child in violation of
Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for one year, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the findings and
only so much of the sentence as provided for a bad-conduct discharge, confinement
for twelve months, and reduction to the grade of E-1. Further, the convening
authority deferred adjudged forfeitures of pay and allowances until action, and
waived automatic forfeitures of pay and allowances for a period of six months.

      This case is before us for review under Article 66, UCMJ. Appellant
personally raised two matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), one of which warrants discussion but no relief.
RODRIGUEZ—ARMY 20150043


                              LAW AND DISCUSSION

        We review a military judge’s decision to accept a plea of guilty for an abuse
of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A
guilty plea will be set aside on appeal only if an appellant can “show ‘a substantial
basis’ in law or fact” to question the plea. Id. (quoting United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by
determining whether the record raises a substantial question about the factual basis
of appellant’s guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at
322; see UCMJ art. 45; see also Rule for Courts-Martial 910(e). In determining
whether a guilty plea is provident, the military judge may consider the stipulation of
fact, the colloquy with appellant, and any reasonable references drawn therefrom.
United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004) (citing United States
v. Care, 18 U.S.C.M.A. 535, 540, 40 C.M.R. 247, 252 (1969)).

       In his Grostefon submission, appellant asserts both specifications to which he
pleaded guilty fail to state an offense and should be set aside. Specifically,
appellant believes “no reasonable fact-finder” could find he committed lewd acts by
saying to a female child under sixteen years of age on two separate occasions, “How
far would you go with me? We can do anything you want and I won’t do anything
more,” or words to that effect, and, “Would you tell anyone if I kiss you,” or words
to that effect. At trial, after admitting a stipulation of fact (Prosecution Exhibit 1)
into evidence, the military judge conducted a colloquy wherein he described the
elements of Article 120b to appellant, followed by a discussion of those elements
relative to the incidents that are the basis for the specifications.

       We find the military judge did not abuse his discretion by accepting
appellant’s guilty plea. Nothing in the record raises a substantial question regarding
the law or facts related to appellant’s plea during trial. Nonetheless, appellant asks
this court to consider the language from the specifications in a vacuum, while
ignoring the circumstances that frame the context of his statements and his intent at
the time he made them. To do so, we would have to disregard facts articulated in the
stipulation and the colloquy, including that both offenses occurred when appellant
woke the victim in the middle of the night, separated her from appellant’s sleeping
family, and uttered the statements to the victim while they were alone as he harbored
the requisite specific intent necessary for committing a lewd act. In isolation,
appellant’s statements could appear benign, however, “[t]he meaning — or ambiguity
— of certain words or phrases may only become evident when placed in context.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).




                                           2
RODRIGUEZ—ARMY 20150043

                                   CONCLUSION

       Upon consideration of the entire record, we find the findings of guilty and the
sentence as approved by the convening authority correct in law and fact. Accord-
ingly, the findings of guilty and the sentence are AFFIRMED.

                                       FOR THE COURT:
                                       FOR THE COURT:



                                       JOHN P. TAITT
                                       JOHNDeputy
                                       Chief P. TAITT
                                                  Clerk of Court
                                       Chief Deputy Clerk of Court




                                          3
