               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         BAILEY V. LAWSON
                     HOSPITALMAN (E-3), U.S. NAVY

                            NMCCA 201300294
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 2 April 2013.
Military Judge: LtCol Charles Hale, USMC.
Convening Authority: Commander, Walter Reed National
Military Medical Center, Bethesda, MD.
Staff Judge Advocate's Recommendation: LT M.A. Dennison,
JAGC, USN.
For Appellant: CAPT Ross L. Leuning, JAGC, USN; LT Jessica
Fickey, JAGC, USN.
For Appellee: LT Ian MacLean, JAGC, USN.

                              30 June 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, pursuant to her pleas, of one
specification of fleeing apprehension and one specification of
drunken operation of a motor vehicle, in violation of Articles
95 and 111, Uniform Code of Military Justice, 10 U.S.C. §§ 895
and 911. The military judge sentenced the appellant to receive
a letter of reprimand, reduction to pay grade E-1, 100 day’s
confinement, and a bad-conduct discharge. The convening
authority (CA) disapproved the letter of reprimand, otherwise
approved the sentence as adjudged, and ordered the sentence
executed. As part of a pretrial agreement (PTA), the CA had
agreed to disapprove the bad-conduct discharge and suspend all
confinement in excess of time served. However, the appellant
committed additional misconduct after trial which resulted in
the CA’s withdrawal from the PTA prior to taking action in the
case.

    The appellant raises three assignments of error:

    1)   That the military judge failed to adequately resolve
         the issue of the appellant’s voluntary intoxication
         during the providence inquiry and that failure
         undermined the intent element of the fleeing
         apprehension charge;

    2)   That the appellant’s trial defense counsel were
         ineffective by failing to challenge the seizure of the
         appellant’s blood without a search authorization; and

    3)   That the trial defense counsel and military judge
         failed to properly rule out issues of mental capacity
         or mental responsibility pursuant to RULE FOR COURTS-
         MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
         ed.).

     After careful consideration of the record of trial and the
pleadings of the parties, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                             Background

     While onboard Fort Belvoir, Virginia, the appellant
consumed nearly 750 ml of vodka over a 90-minute time span both
before and while driving her car. The appellant was pulled over
at 0914 by base police for suspicion of driving under the
influence of alcohol. Upon approaching her car, police officers
observed the appellant’s glassy, bloodshot eyes. When
approached by another officer, the appellant drove away at high

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speed, nearly hitting one of the police officers. The appellant
drove to Alexandria, Virginia with police in pursuit. The
appellant reached speeds of nearly 100 miles per hour during the
chase, eventually losing control of her car in a residential
neighborhood and crashing into a fence. As officers approached,
the appellant again attempted to drive away, but collided with
the surrounding police cars. The appellant had to be forcibly
removed from her car. After she was apprehended, police found a
nearly empty vodka bottle inside the appellant’s car.

     The appellant was transferred to the Fort Belvoir police
station at 0950. During transfer, she admitted to the officers
that she had been drinking. At the station, the appellant
repeatedly refused a breath test. The appellant was then taken
to the Fort Belvoir hospital where her blood was drawn at 1130
hours. Result of the blood test revealed a blood alcohol
content of 0.37.

                     Providence of the Pleas

     The appellant asserts that the military judge erred in
accepting her guilty plea because the facts suggested a defense
of voluntary intoxication that was not resolved. We disagree.

     A guilty plea will be rejected on appeal only where the
record of trial shows a substantial basis in law or fact for
questioning the plea. United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008). We review the military judge’s decision to
accept the a guilty plea for an abuse of discretion. Id. If
“either during the plea inquiry or thereafter . . .
circumstances raise a possible defense, a military judge has a
duty to inquire further to resolve the apparent inconsistency.”
United States v. Phillippe, 63 M.J. 307, 310-11 (C.A.A.F. 2006).
This inquiry should include a concise explanation of the defense
and “[o]nly after the military judge [makes] this inquiry can he
then determine whether the apparent inconsistency or ambiguity
has been resolved.” Id. at 310 (footnote omitted); see also
United States v. Pinero, 60 M.J. 31, 34 (C.A.A.F. 2004).

     Voluntary intoxication is not a defense, but may negate the
specific intent required for some offenses. United States v.
Peterson, 47 M.J. 231, 233 (C.A.A.F. 1997); see R.C.M.
916(l)(2). The appellant argues that flight from apprehension

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is such an offense, in that one cannot “be said to be fleeing
apprehension if they do not know someone is attempting to
apprehend them.” Appellant’s Brief of 9 Oct 2013 at 9.    While
the court finds the appellant’s argument colorable, we need not
decide in this case whether flight from apprehension is a
specific-intent offense because the facts indicate that the
appellant was not, at the time of the offense, sufficiently
impaired to call her guilty plea into question.

     The potential issue of voluntary intoxication does not
arise simply because the appellant was drinking or was even
intoxicated. In order for voluntary intoxication to be at
issue, “the intoxication must be to such a degree that the
accused's mental faculties are so impaired that a specific
intent cannot be formed.” United States v. Yandle, 34 M.J. 890,
892 (N.M.C.M.R. 1992) (citing United States v. Bright, 20 M.J.
661 (N.M.C.M.R. 1985)). In ascertaining the effects of
intoxication on an accused pleading guilty, courts give weight
to an accused’s words and actions, as recounted by both the
accused and other witnesses. See United States v. Lacy, 27
C.M.R. 238, 240 (C.M.A. 1959); United States v. Haynes, 29 M.J.
610, 612 (A.C.M.R. 1989). “Frequently, as here, the conduct of
an accused is sufficiently focused and directed so as to amply
demonstrate a particular mens rea or other state of mind.”
Peterson, 47 M.J. at 234.

     In the case at bar, the providence inquiry and stipulation
of fact reveal that the appellant was intoxicated at the time of
the offense. But the providence inquiry also revealed that she
was able to pull her car over into a parking lot without
incident when directed to do so by the police, that she spoke
with one of the officers, and drove her car out of the parking
lot at high speed only after she was approached by a second
officer. The appellant then successfully drove off of Fort
Belvoir, again at high speed, and made her way onto a local
roadway. She then drove her vehicle for some distance at speeds
near 100 mph, with three police vehicles in pursuit. These
facts convince us that the alcohol had not so severely impaired
her that she was unable to form the requisite intent to flee.
Moreover, while the appellant may have limited recollections
about the events in question, an inability to recall all of the
events is not dispositive of whether she had the capacity to

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form the specific intent at the time of the offense. She told
the military judge, “I just remember seeing lights in my
rearview mirror, and I knew that I was being pulled over, and I
chose not to stop.” Record at 44. Accordingly, we find that
the military judge did not abuse his discretion by accepting the
appellant’s guilty plea.

                Ineffective Assistance of Counsel

     At the conclusion of the high speed chase, the appellant
was taken to the Fort Belvoir police station. Prosecution
Exhibit 1 at 5. There she twice refused to provide a breath
sample. As a result, she was taken to the local hospital and a
blood test was taken. Record at 43, 51-52; PE 1 at 5. The
appellant now contends that her trial defense counsel’s failure
to mount a 4th Amendment challenge to suppress the results of
the blood test amounted to ineffective assistance of counsel.
Appellant’s Brief at 12.

     We review ineffective assistance of counsel claims de novo.
United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). We
note that the appellant “must surmount a very high hurdle” for a
successful claim of ineffective assistance of counsel. United
States v. Smith, 48 M.J. 136, 137 (C.A.A.F. 1998) (quoting
United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997)). In
order to prevail, the appellant must demonstrate that her
counsel’s performance “fell below an objective standard of
reasonableness.” United States v. Edmond, 63 M.J. 343, 345
(C.A.A.F. 2006) (quoting United States v. Davis, 60 M.J. 469,
473 (C.A.A.F 2005)). The appellant has the burden of
demonstrating: (1) her counsel was deficient; and (2) she was
prejudiced by such deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Because this is a guilty
plea case, the appellant must show not only that her counsel was
deficient but also that “‘there is a reasonable probability
that, but for counsel's errors, [s]he would not have pleaded
guilty and would have insisted on going to trial.’” United
States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)).

     The appellant’s claim is premised on an assertion that the
blood draw in question was taken without a proper search
warrant. Appellant’s Brief at 12. Nothing in the record

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supports that assertion. Rather, the record is silent on
whether her blood was drawn with or without a search
authorization. Given that the appellant has the burden to prove
deficient performance, failure to establish the factual basis
for her claim.

     Moreover, even if the blood draw was conducted without a
warrant and trial defense counsel was deficient in not
challenging the result, there is nothing in the record to
suggest that the appellant would not have pleaded guilty. The
evidence against the appellant, even without a BAC level, was
overwhelming: she admitted drinking, displayed highly erratic
behavior, had bloodshot eyes, and had a nearly empty bottle of
vodka in her car at the time of apprehension. In light of these
facts, we find no evidence of ineffective assistance of counsel.

               Mental Capacity and Responsibility

     After careful consideration, we find the appellant’s final
assignment of error without merit. United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987).

                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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