         U NITED S TATES N AVY –M ARINE C ORPS
               C OURT      OF   C RIMINAL A PPEALS
                         _________________________
                             No. 201500249
                         _________________________
                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                           ALFREDO SOLIS
                Staff Sergeant (E-6), U.S. Marine Corps
                                 Appellant
                         _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Lieutenant Colonel L.J. Francis, USMC.
         For Appellant: James S. Trieschmann, Jr., Esq.;
                Major Benjamin A. Robles, USMC.
 For Appellee: Lieutenant Commander Robert Miller , JAGC, USN;
               Captain Matthew M. Harris, USMC.
                     _________________________
                         Decided 11 August 2016
                         _________________________
 Before PALMER, MARKS, and FULTON, Appellate Military Judges
                         _________________________

                PUBLISHED OPINION OF THE COURT
                      _________________________
   FULTON, Judge:
    A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of one
specification each of violating a lawful general order and sexual assault, in
violation of Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 920. The members sentenced the appellant to 24 months’
confinement, reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged.




           Corrected Opinion Issued 16 August 2016
   The appellant raises the following assignments of error (AOE):1
   I. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the
   language “incapable of consenting to the sexual act because she
   was impaired by . . . alcohol” is unconstitutionally vague.
   II. The evidence is factually and legally insufficient to sustain the
   appellant’s conviction for sexual assault.
   III. It was plain error when the military judge admitted evidence
   of the victim’s prior, unrelated molestation without instructing the
   members on its permissible use.
   IV. The military judge abused his discretion when he allowed
   messages from the victim’s Facebook account into evidence without
   the proper foundation.
   V. Certain command, investigative, and prosecutor actions
   including altering evidence against the appellant amounted to
   prosecutorial misconduct.
   VI. Members’ responses at voir dire and existing working
   relationships with the trial counsel amounted to actual or implied
   bias.
   We find no error and affirm.
                              I. BACKGROUND
    The appellant was a staff sergeant in the Marine Corps assigned to
recruiting duty in Southern California. In June 2012, the appellant was the
primary recruiter for LH, a female high school student. The two met about
once a week. During a recruiting function, LH told the appellant that she had
always been “somewhat poor,” and that financial considerations were one of
the main reasons she was joining the Marine Corps. The appellant told her
that he might have an odd job related to sales that could help meet her
expenses during her last year of high school. In late November 2012, LH
enlisted, becoming a “poolee” in the Delayed Entry Program (DEP).
   After becoming a poolee, LH had little contact with the appellant until
February 2013. On 24 February 2013, the appellant sent LH a Facebook
message telling her she could earn $200.00 in one weekend by selling
wrestling gear with him at a wrestling tournament in Fresno, California. LH
agreed to the offer.




   1 Appellant’s Brief of 29 Jan 2016 at 1-2. The appellant raises AOEs V
and VI pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

                                      2
    On the morning of 8 March 2013, the appellant, wearing civilian clothes
and driving his personal vehicle, picked up LH at her house. The two drove to
a parking lot where they were joined by a civilian friend of the appellant and
several wrestlers who were participating in the tournament. The appellant,
his friend, LH, and the wrestlers traveled in the friend’s SUV to a hotel in
Fresno California, about three-and-one-half hours away from LH’s home. The
group checked into the hotel. The appellant’s friend paid for three rooms—
one for himself, one for the wrestlers, and one for the appellant and LH. After
checking in, the appellant, his friend, and LH ate dinner at Hooters. The
appellant drank at least one beer, and LH drank soda.
    After dinner, the appellant and LH went to a nearby convenience store
where the appellant purchased a bottle of Jägermeister alcohol, two cans of
Red Bull energy drink, and plastic cups. Back in the hotel room, the
appellant put the Jägermeister on ice and left the room. While the appellant
was gone, LH smoked “medical grade” marijuana. Upon returning to the
room, the appellant realized LH had been smoking marijuana, but took no
action. Instead, he taught LH how to play a drinking game using
Jägermeister and Red Bull. LH drank approximately nine small cups and
three larger “penalty cups” of Jägermeister and Red Bull while playing the
game. LH, who had never combined alcohol and marijuana before, became
dizzy and felt like her body “was slowly going under an anesthetic.”2 She
grabbed a coffee table, turned around, and managed to take two or three
steps to a couch. LH “plopped” onto the couch, “just kind of laying down and
kind of sitting up at the same time.”3 LH’s last memory before she was
assaulted was leaning on the couch’s armrest, staring at the turned-off
television, and trying to stay awake.
    LH’s next memory was slowly waking face-up on the bed and looking at
the ceiling with “tunnel vision.”4 LH slowly returned to her senses and
realized that her pants and underwear were off and the appellant was on top
of her having sexual intercourse with her. LH was unable to push him off and
started cursing at him. The appellant responded by saying “just let me
finish.”5 After LH continued to curse at and push the appellant, he got off of
her and walked toward the bathroom. LH fell asleep again and woke up in
the morning under a sheet, still naked from the waist down.




   2   Record at 392.
   3   Id. at 393.
   4   Id. at 394.
   5   Id. at 395.

                                      3
   LH, who had no cell phone, credit card, or bank account of her own, and
whose mother did not own a car, spent the rest of the weekend with the
appellant in Fresno, helping him sell wrestling gear at the tournament. She
did not report that she had been sexually assaulted. About a week after the
tournament, the appellant paid LH $200.00 in cash for her work.
    In May or June 2013, LH and her boyfriend were talking about the future
of their relationship and contemplating becoming engaged. During the
discussion, LH disclosed that the appellant had sexually assaulted her in
Fresno. LH told two other friends about the assault over the course of the
summer and, with their encouragement, decided to tell the Marine Corps
about the assault.
    In early July 2013, as LH’s boot camp departure date approached, LH
returned to the recruiting station and underwent the “moment of truth,”
during which recruiters encourage poolees to disclose any latent problems
with their enlistments, such as recent drug use. When a recruiter told LH
that her hair would be tested for drugs at boot camp, LH became worried her
marijuana use as a poolee would be discovered. So she revealed some of her
more recent marijuana use to the recruiters, believing that it would be better
for her to disclose it then, even though she might require an additional
waiver. Although her recruiters requested another waiver for marijuana use,
the waiver was denied and LH was discharged from the DEP.
   In August 2013, after her discharge, LH returned to the recruiting station
and told a recruiter that the appellant sexually assaulted her in Fresno.
    During direct examination, trial counsel asked LH if she could explain
why she did not tell anyone about the assault the day after it happened. LH
answered that she was sexually molested as a young child—a fact not
previously shared with trial counsel, defense counsel, or law enforcement.
The military judge then held a closed session under MILITARY RULE OF
EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
LH testified that when she was between four and six years old, a man who
shared her house touched her genitals and forced her to touch his genitals on
more than ten occasions. LH said the man partially penetrated her vulva
with his fingers but did not remove her pants.
     The military judge permitted trial counsel to elicit this testimony from
LH in front of members. LH explained that she never told her mother about
the prior abuse because she did not want to burden her. The military judge
also permitted the civilian defense counsel to cross-examine LH extensively
about the prior abuse, whether it resulted in any kind of treatment or
diagnosis, and the degree to which memories of it intruded on her thoughts at
the time of the charged assault.


                                      4
                                     II. DISCUSSION
A. Vagueness of Article 120(b)(3), UCMJ
    The appellant asserts that Article 120(b)(3), UCMJ, is unconstitutionally
vague both on its face and as applied to him. We review the constitutionality
of a statute de novo. United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005).
     A statute may be unconstitutionally vague for either of two reasons: first,
if it fails to give a person of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits; second, if it authorizes or encourages
arbitrary or discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732
(2000). We hold that Article 120(b)(3) is not unconstitutionally vague on its
face or as applied to the appellant’s case.
   1. Facial challenge
   The appellant argues that Article 120(b)(3) is unconstitutional on its face
because there is no way for a person of common intelligence to determine
when another person is impaired by alcohol such that they are incapable of
consenting to a sexual act.
   The statutory text at issue is as follows:

   Article 120—Rape and sexual assault generally

   ....

   (b) Sexual Assault. Any person subject to this chapter who—

   ....

   (3) commits a sexual act upon another person when the other
   person is incapable of consenting to the sexual act due to—

      (A) impairment by any drug, intoxicant, or other similar
   substance, and that condition is known or reasonably should be
   known by the person
       ...

         (B) . . . is guilty of sexual assault . . . .

   The appellant argues that the statute does not “draw the line” that would
determine whether a person’s degree of impairment renders that person no
longer capable of consenting to sexual conduct.6 But by focusing narrowly on
the term impaired, the appellant fails to appreciate that the statute does not

   6   Appellant’s Brief at 7.

                                              5
proscribe sexual acts with impaired people, but rather with people incapable
of consenting to the conduct at issue because of their impairment—and even
then, only when the inability to consent is known, or reasonably should be
known, to an accused.
    The word incapable is not defined by the statute. But a person of ordinary
intelligence would understand by the term’s plain meaning that sexual
conduct with a person who lacks the ability to consent is proscribed. See
United States v. Pease, 74 M.J. 763, 770 (N-M. Ct. Crim. App. 2015), aff’d 75
M.J. 180 (C.A.A.F. 2016) (defining “incapable of consenting” as “lack[ing] the
cognitive ability to appreciate the sexual conduct in question or the physical
or mental ability to make [or] to communicate a decision about whether they
agreed to the conduct”). The statute defines consent as “a freely given
agreement to the conduct at issue by a competent person.” Art. 120(g)(8)(A),
UCMJ. Additionally, the fact that Article 120(b)(3)(A) requires that an
accused know or should reasonably know that another person is incapable of
consenting makes the statute even more definite. See Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (“[A] scienter
requirement may mitigate a law’s vagueness, especially with respect to the
adequacy of notice to the complainant that his conduct is proscribed.”). We
find that Article 120(b)(3) provides a person of reasonable intelligence fair
notice of what conduct it proscribes.
    Similarly, the statute is not so standardless that it invites arbitrary
enforcement. Cf. Kolender v. Lawson, 461 U.S. 352, 357-61 (1983) (finding
statute which authorized arrest of individuals who did not provide “credible
and reliable” identification to a police officer to be unconstitutionally vague,
because it “fail[ed] to establish standards by which the officers may
determine whether the suspect has complied with the . . . identification
requirement”). Article 120(b)(3) does not require a person to arbitrarily
determine how impaired another person must be before they are too
impaired. Rather, it requires a person to determine if a sexual partner is
capable of consenting. Again, the scienter requirement serves to narrow the
sweep of the statute and to guide both prosecutors and fact finders. A
successful prosecution does not depend on a trial counsel’s or panel’s
subjective sense of how impaired is too impaired. Rather it depends on
proving that an accused knew, or reasonably should have known, that the
other person was incapable of consenting. This is a clear standard that
provides reasonable guidance to prosecutors and fact finders, and does not
invite arbitrary or discriminatory enforcement.
    Because Article 120(b)(3)(A) provides a person of ordinary intelligence fair
notice of what conduct is proscribed and does not invite arbitrary or
discriminatory enforcement, we hold that it is not facially unconstitutionally
vague.

                                       6
   2. As applied challenge
    In addition to arguing that Article 120(b)(3) is facially vague, the
appellant argues that the statute is vague as applied to him because he could
not have discerned that his conduct with LH was criminal. He argues that
the record contains no direct evidence that LH passed out, was unconscious,
or was otherwise unresponsive. He further argues that LH’s testimony is
consistent with her having experienced a fragmentary blackout. Even if LH
had been so intoxicated that she was unable to remember at least some of
what happened, she may have still been capable of consenting to sexual
conduct. The appellant then argues that if LH had been in a blackout instead
of asleep or unconscious, “there is no way for a person of common intelligence
to determine when an intoxicated person’s ability to consent is sufficiently
‘impaired’ that sexual conduct becomes a crime.”7 We disagree with this view
of the statute as applied to the appellant’s case.
   The appellant again misconstrues the statute by suggesting that it calls
on a person to make an arbitrary judgment about another person’s degree of
impairment. It does not. Article 120(b)(3) proscribes sexual acts with people
who are incapable of consenting to them.
   With this view of Article 120(b)(3) in mind, we find that the statute
properly informed the appellant that his conduct was proscribed. LH, an
inexperienced drinker who had already used marijuana, vividly described
how the alcohol she consumed rendered her senseless, like she was “slowly
going under an anesthetic.” When LH first began to regain consciousness, she
found herself on the bed, with “tunnel vision,” staring at the ceiling. LH
described a gradual process of regaining consciousness. She still felt numb as
she came to, and at first she was unaware that her pants and underwear had
been removed. She recognized the appellant’s face over her, but she was
unaware that he was already penetrating her until she felt him thrust. In
short, she was unable to consent to the sexual act both because she lacked
the cognitive ability to appreciate the sexual conduct in question and because
she lacked the ability to make or communicate an agreement to the sexual
conduct—either one of which rendered her incapable of consenting. The
appellant, who purchased the alcohol for LH, served it to her, and was
present when she collapsed on the couch, would have known that LH was not
capable of consenting to a sexual act. A fair reading of Article 120(b)(3) gives
a person of reasonable intelligence notice that committing a sexual act with
LH in that condition is proscribed by the statute.




   7   Id. at 10.

                                       7
B. Factual and legal sufficiency
   The appellant contends that the evidence is factually and legally
insufficient to sustain his conviction for sexual assault. We disagree.
    We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test
for legal sufficiency is whether a rational trier of fact could have found that
the evidence met the essential elements of the charged offenses, viewing the
evidence in a light most favorable to the Government. See United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual sufficiency is
whether, after weighing all the evidence in the record and allowing for the
fact that we did not personally observe the witnesses, we are convinced of the
appellant’s guilt beyond a reasonable doubt. Id. at 325.
   The appellant offers two theories of reasonable doubt as to his guilt: that
LH lied about the sexual assault, and that LH may have been mistaken
about whether the appellant had sex with her.
    As to LH lying about the sexual assault, the appellant argues that she
lied to her mother and the Marine Corps about her marijuana use and lied to
her boyfriend about who was accompanying her to Fresno. He asserts that
her trial testimony was inconsistent from one day to the next. Beyond
incidents of untruthfulness, the appellant also argues LH had a motive to lie
because she likely blamed the appellant for her disenrollment from the DEP.
   Regarding LH being mistaken about having sex, the appellant points out
that LH was under the influence of alcohol and marijuana on the evening in
question, and that she had been drinking energy drinks. He also argues that
she may have suffered from post-traumatic stress due to her earlier abuse.
The combination of substances and traumatic history, he suggests, may have
caused a “flashback” to her earlier abuse in the form of a dream.8 Further,
LH may have confused this dream with reality and concluded, incorrectly,
that the appellant had intercourse with her. In support of this contention, the
appellant points to LH’s Article 32, UCMJ investigation testimony, with
which she was cross-examined, and in which she said that upon waking the
next day she wondered to herself whether she had dreamed the assault.
   After reviewing the entire record, we are convinced of every element of
sexual assault beyond a reasonable doubt and find that the appellant’s sexual
assault conviction is legally and factually sufficient.
    LH’s in-court testimony was compelling and substantially corroborated by
other evidence at nearly every point one could reasonably expect
corroboration. For example, LH stated that she went to Fresno with the

   8   Id. at 13.

                                      8
appellant on 8 March 2013; the appellant’s Payment and Leave Summary
confirms that he took leave that day. The appellant’s bank records reflect a
point-of-sale debit card transaction at the convenience store where LH
testified he bought alcohol, Red Bull, and cups. Facebook messages between
the appellant and LH confirm that they had arranged for the appellant to
pick up LH at her home, and LH’s mother recalled the event. LH’s claim that
she was paid $200.00 in cash on 19 March 2013 corresponds to Facebook
messages between LH and the appellant, and to the appellant’s bank records.
The appellant’s girlfriend, who was staying in the same hotel as the appellant
and planning to meet him, tried to contact the appellant at about 2345 on the
night of the assault. The appellant did not answer his phone. A witness
without any significant connection to LH remembered seeing her selling
wrestling gear at the tournament. Most significantly, Facebook messages
from LH to her boyfriend on the night of the assault corroborate that she was
with the appellant, that he was aware that she was smoking marijuana, and
that he was teaching her the drinking game they played that evening. All of
this evidence was created before LH had any motive for retribution against
the appellant.
   We find the appellant’s contention that the combination of alcohol,
marijuana, and childhood sexual trauma caused LH to mistakenly believe the
appellant assaulted her does not withstand examination.
    LH’s testimony revealed insight into what happened to her that evening,
including insight into the limits of her perception and ability to remember.
She convincingly described her awareness of the effect of the marijuana and
alcohol, slowly anesthetizing her in a progressive debilitation until she was
no longer able to remain awake on the couch. She also described the slow
return of her senses on the bed, realizing that she was naked from the waist
down and that the appellant was having sex with her.
    We find that LH’s history of sexual abuse as a young girl was unlikely to
have confused her testimony regarding this evening. LH was molested as a
young child, and the molestation did not involve intercourse. She testified
that although she recalled being molested, that memory was not so
significant that it tended to intrude on her daily thoughts. The different
nature of the acts, the remoteness in time, and the lack of emotional
prominence placed by LH on earlier molestation—demonstrated both by LH’s
testimony and that fact that the subject never arose during pretrial
interviews—leave us convinced that LH did not confuse these memories.
Most significantly, the next day LH had soreness in her vagina. LH described
this soreness as similar to the soreness she experienced after she had sex
with her boyfriend, only much more sore. This next-day soreness is
inconsistent with a theory that LH had only imagined sex with the appellant.
Although civilian defense counsel attempted to attribute the vaginal soreness

                                      9
to an unrelated medical condition, LH credibly insisted that she could
distinguish the discomfort caused by her condition from the internal vaginal
soreness caused by intercourse.
C. Instructional error
    The appellant alleges that the military judge erred when he failed to
instruct the members how they were permitted to use LH’s testimony about
her sexual abuse as a child. A military judge may instruct members
regarding the proper use of evidence admitted under MIL. R. EVID 412 in
order to avoid unfair prejudice to a party. See United States v. Dorsey, 16 M.J.
1, 8 (C.M.A. 1983) (noting that the military judge should have issued an
“instruction limiting the use of [MIL. R. EVID 412] evidence,” instead of
excluding said evidence). Civilian defense counsel did not ask for such an
instruction, so the military judge’s failure to give one is reviewed for plain
error. RULE FOR COURTS-MARTIAL 920(f), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). An error is plain error when it is plain and
obvious, and when the error materially prejudiced a substantial right of the
appellant. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011).
    The appellant argues that the evidence of LH’s earlier abuse was
“sensational, inflammatory, and prejudicial,” and that the members might
have misused this evidence.9 In particular, the appellant urges that
members: may have used this evidence to conclude that the appellant was a
sophisticated predator who carefully chose LH because of her status as a
previous victim; may have been inappropriately swayed by sympathy for LH;
may have punished the appellant for the actions of LH’s prior abuser; or may
have considered her status as a previous victim as an aggravating
circumstance in sentencing.
    We disagree that the judge committed plain error by not instructing
members on how to use this evidence. Both sides thought that this evidence
was relevant to its theory of the case and attempted to use it to their own
advantage. Civilian defense counsel incorporated LH’s prior sexual abuse into
his theory of the case. He explored the incident in cross-examining LH and
the Government’s expert witness, suggesting that memories of the prior
abuse might have caused LH to dream that she had been sexually assaulted.
There is no obvious reason why this evidence would have confused the
members. LH’s disclosure of this evidence at trial was surprising, but not
sensational. It is not information that would tend to inflame the members
against the appellant. There is no evidence that the appellant would have
known about this earlier abuse. None of the counsel knew about it before
trial. The military judge’s decision to not craft a special instruction covering


9   Id. at 18.
                                      10
this evidence was not a plain and obvious error—if it was error at all—and
the issue was forfeited.
D. Evidentiary foundation for Facebook messages
    The prosecution introduced Facebook messages between LH and the
appellant. These messages tended to corroborate LH’s testimony concerning
her agreement to travel to Fresno with the appellant to sell wrestling gear. In
the messages, a Facebook account holder with the screen name Freddy Solis
reminds LH that he had talked to her about getting part time work for her
and arranges to pick up LH at her house. After the tournament, he arranges
to drop off the money she earned.
    The appellant alleges that the military judge erred by admitting these
messages without sufficient evidence that the appellant was actually a party
to the communication. We disagree.
    A military judge’s decision to admit evidence is reviewed for an abuse of
discretion. “An abuse of discretion occurs when the trial court’s findings of
fact are clearly erroneous or if the court’s decision is influenced by an
erroneous view of the law.” United States v. Freeman, 65 M.J. 451, 453
(C.A.A.F. 2008) (citation omitted). An item of evidence may not be admitted
unless its authenticity is demonstrated by evidence sufficient to support a
finding that the matter in question is what its proponent claims. MIL. R.
EVID. 901(a).
    LH testified that she became Facebook friends with the appellant during
the time he was her recruiter, and that his Facebook profile name was
“Freddy Solis.” Because financial problems caused her to lose the use of her
cell phone, Facebook messages were a method she and the appellant used to
communicate. LH examined the messages and recognized the appellant’s
picture on the profile. She recognized the content of the messages she sent to,
and received from, the appellant. She also testified that after she arranged
through these messages to have “Freddy Solis” pick her up to go to Fresno,
the appellant showed up at her house at the designated time.
    We have no difficulty finding that the prosecution presented sufficient
evidence to support a finding that the appellant was the “Freddy Solis”
behind the Facebook messages. The military judge did not abuse his
discretion by admitting this evidence.
E. Remaining assignments of error
   We have considered the errors raised personally by the appellant and find
that they are without merit. See United States v. Clifton, 35 M.J. 79 (C.M.A.
1992).



                                      11
                          III. CONCLUSION
The findings of guilty and the sentence are affirmed.
Senior Judge PALMER and Judge MARKS concur.


                                    For the Court




                                    R.H. TROIDL
                                    Clerk of Court




                                  12
