                       UNITED STATES, Appellant

                                    v.

      Justin R. WHITAKER, Machinery Technician Third Class
                   U.S. Coast Guard, Appellee

                              No. 13-5004

                          Crim. App. No. 1366

       United States Court of Appeals for the Armed Forces


                        Decided June 18, 2013


                               PER CURIAM


                                 Counsel

For Appellant:    Lieutenant Commander Vasilios Tasikas (on
brief).

For Appellee: Lieutenant Cara J. Condit and Lieutenant Jonathan
C. Perry (on brief).

Military Judge:   Michael E. Tousley

       This opinion is subject to revision before final publication.
United States v. Whitaker, No. 13-5004


     PER CURIAM:

     Consistent with his pleas, a military judge sitting as a

general court-martial convicted Appellee of sodomy, assault

consummated by a battery (three specifications), and providing

alcohol to a minor, in violation of Articles 125, 128, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 928,

934 (2006), respectively.   The approved sentence consisted of

confinement for fifteen months, reduction to E-1, forfeiture of

all pay and allowances, and a dishonorable discharge.

     At trial, Appellee stipulated that he committed oral sodomy

upon a sleeping shipmate by inserting his penis between her lips

and that he knew she “was asleep and an unwilling participant.”

On direct review, the United States Coast Guard Court of

Criminal Appeals (CGCCA) focused on the absence of the type of

guilty plea colloquy discussed in United States v. Hartman, 69

M.J. 467 (C.A.A.F. 2011) (holding the appellant’s guilty plea

improvident where the military judge failed to elicit the

appellant’s personal understanding and acknowledgment that his

engaging in sexual activity with another consenting adult was

subject to criminal sanction under the circumstances).   United

States v. Whitaker, No. 1366, slip op. at 3 (C.G. Ct. Crim. App.

Dec. 12, 2012).    The CGCCA concluded that the military judge’s

failure to explain to Appellee either that certain sexual

activity is constitutionally protected under Lawrence v. Texas,

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United States v. Whitaker, No. 13-5004


539 U.S. 558 (2003), or why an act of sodomy committed upon a

sleeping victim fell outside the bounds of Lawrence’s protected

liberty interest, rendered Appellee’s plea improvident, and it

set aside the finding of guilty to sodomy and dismissed that

charge and specification.   Whitaker, No. 1366, slip op. at 4.

     The Judge Advocate General of the Coast Guard certified the

following question:

     WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
     ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF
     HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE
     PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY
     FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED
     BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING
     VICTIM.

     “In determining whether a guilty plea is provident, the

military judge may consider the facts contained in the

stipulation [of fact] along with the inquiry of appellant on the

record.”   United States v. Jones, 69 M.J. 294, 299 (C.A.A.F.

2011) (internal quotation marks and citation omitted); see also

United States v. Sweet, 42 M.J. 183, 185 (C.A.A.F. 1995).

     Here, Appellee admitted in the stipulation of fact to an

act of sodomy occurring without consent, since a sleeping victim

cannot consent.   United States v. Palmer, 33 M.J. 7, 9 (C.M.A.

1991); see also Article 120(t)(14), UCMJ, 10 U.S.C. § 920(t)(14)

(2006).    Nonconsensual sexual activity is simply not protected

conduct under Lawrence, 539 U.S. at 578 (emphasizing that the

sexual activity at issue involved two adults and occurred “with

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United States v. Whitaker, No. 13-5004


full and mutual consent” from one another), and an act of sodomy

with a sleeping victim does not implicate constitutional

protections or even arguably constitute permissible behavior.

Compare Hartman, 69 M.J. at 468 (requiring a “discussion and

acknowledgment on the part of the accused of the critical

distinction between permissible and prohibited behavior” where

“a charge against a servicemember may implicate both criminal

and constitutionally protected conduct”) (emphasis added).

Thus, contrary to the CGCCA’s reasoning, the military judge did

not err in failing to explain why Appellee’s conduct was subject

to criminal sanction.   See United States v. Medina, 72 M.J. 148

(C.A.A.F. 2013); Hartman, 69 M.J. at 469.

     What remains is to determine whether Appellee’s plea was

otherwise provident under United States v. Care, 18 C.M.A. 535,

40 C.M.R. 247 (1969), and Rule for Courts–Martial 910.    Here,

the stipulation of fact stated that Appellee knew that the

victim “was asleep and an unwilling participant,” and there are

no facts or statements in the record that are inconsistent with

Appellee’s stipulation.   Although this fact was neither set

forth in the specification nor explored by the military judge

during the providence inquiry, the military judge was allowed to

consider the stipulation of fact in determining whether

Appellee’s plea was provident, and whether Appellee’s conduct

under the circumstances implicated constitutionally protected

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United States v. Whitaker, No. 13-5004


conduct.   Jones, 69 M.J. at 299.       Considering the stipulation of

fact in conjunction with the providence inquiry, which

adequately covered the elements of Article 125, UCMJ, there is

no substantial basis in law or fact to question the providence

of Appellee’s plea.

                             Decision

     We answer the certified issue in the affirmative, and

reverse the decision of the United States Coast Guard Court of

Criminal Appeals as to Additional Charge II and its sole

specification.   The decision of that court as to the remaining

charges and specifications is affirmed.       The record of trial is

returned to the Judge Advocate General of the Coast Guard for

remand to that court for further review under Article 66(c),

UCMJ, 10 U.S.C. § 866(c) (2006).




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