           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201500326
                          _________________________

                   UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                   CHRISTOPHER R. CLUGSTON
                    Sergeant (E-5), U.S. Marine Corps
                                Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Lieutenant Colonel E.A. Harvey, USMC
   Convening Authority: Commanding General, 3rd Marine Aircraft
              Wing, MCAS Miramar, San Diego, CA.
     Staff Judge Advocate: Captain Anthony M. Grzincic, USMC.
          Addendum: Colonel Daren K. Margolin, USMC.
      For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.
   For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
               USN; Major Cory A. Carver, USMC.
                       _________________________

                        Decided 31 January 2017
                          _________________________

           Before MARKS, FULTON, and GLASER-ALLEN,
                      Appellate Military Judges
                       _________________________

 This opinion does not serve as binding precedent, but may be cited
    as persuasive authority under NMCCA Rule of Practice and
                           Procedure 18.2.
  _________________________

   MARKS, Senior Judge:
   A panel of members with enlisted representation, sitting as a general
court-martial, convicted the appellant, contrary to his pleas, of one
specification of sexual assault, in violation of Article 120, Uniform Code of
                     United States v. Clugston, No. 201500326


Military Justice (UCMJ), 10 U.S.C. § 920 (2012).1 The members sentenced
the appellant to 24 months’ confinement, reduction to pay grade E-1,
forfeiture of all pay and allowances, and a dishonorable discharge. The
convening authority approved the sentence as adjudged and, except for the
punitive discharge, ordered the sentence executed.
    The appellant asserts four assignments of error (AOE): (1) the evidence is
legally and factually insufficient; (2) the military judge committed prejudicial
error instructing the members on voluntary intoxication and
unconsciousness; (3) the charge of engaging in a sexual act with someone
incapable of consenting due to impairment is unconstitutionally vague; and
(4) the military judge committed plain error instructing the members, “[i]f,
based on your consideration of the evidence, you are firmly convinced that the
accused is guilty of the crime charged, you must find him guilty.”2 After
carefully considering the pleadings and the record of trial, we find no error
materially prejudicial to the substantial rights of the appellant and affirm
the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
   On the evening of 7 February 2014, the appellant, victim Lance Corporal
(LCpl) JSM, and witnesses Corporal (Cpl) W and Cpl S, all members of the
same unit, were hanging out at a barracks smoke pit. The appellant, a
married sergeant who lived off-base, planned to spend the night in the
barracks with Cpl W so they could leave on a hiking trip the next day. Cpl W,
Cpl S, and the appellant joined LCpl JSM at the smoke pit gathering and
spent several hours smoking hookah, eating pizza, and drinking beer.
    Sometime around 2300, LCpl JSM felt “too drunk” and decided to return
to her room on the third deck of a nearby barracks for the night. All four
Marines made their way to LCpl JSM’s room, with LCpl JSM leaning on the
appellant and Cpl W for support. However, when they reached LCpl JSM’s
room, it was the appellant who collapsed on the floor from the effects of
alcohol. When Cpl W and Cpl S could not rouse the appellant from where he
lay, LCpl JSM said he could stay in her room for the night. She continued to
converse with Cpl W and Cpl S, laughing and giggling, for about ten minutes


   1 The members acquitted the appellant of a single specification of sexual assault
of someone asleep, unconscious, or otherwise unaware, in violation of Article
120(b)(2), UCMJ.
   2  We found no error in the use of the same challenged reasonable doubt
instruction in United States v. Rendon, 75 M.J. 908, 916-17 (N-M. Ct. Crim. App.
2016) petition for rev. filed, No. 17-0168,__ M.J. __(C.A.A.F. 30 Dec 2016), and in
accordance with that holding, we summarily reject this AOE. United States v. Clifton,
35 M.J. 79, 81 (C.M.A. 1992).


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                    United States v. Clugston, No. 201500326


before falling asleep on her rack, still fully clothed. Cpl W and Cpl S removed
LCpl JSM’s boots and rolled the appellant on his side in case he vomited.
Concerned about both intoxicated Marines, Cpl W decided to sleep in an open
rack in LCpl JSM’s room. There had been no flirtation or signs of any sexual
interest between the appellant and LCpl JSM, so preventing a sexual assault
was not foremost in Cpl W’s mind.
    During the night, LCpl JSM woke to pain in her vagina and something
heavy on top of her and began screaming. She pushed the appellant off of her
body and onto the floor. He was no longer wearing pants. Cpl W awoke to
LCpl JSM’s screams and pleas for help and after a few moments hunting for
a light switch, turned on the lights. LCpl JSM was sitting up in bed with a
blanket wrapped around her and all of her clothes on the floor surrounding
her bed. The appellant, appearing disoriented, put on his shirt and pants and
left the room. Cpl W left to obtain contact information for a Uniform Victim
Advocate. LCpl JSM reported the assault that night and underwent a sexual
assault forensic examination the next day. Forensic analysis of the swabs
from LCpl JSM’s examination revealed semen and the appellant’s DNA.
    The appellant pursued an affirmative defense of sexsomnia, or sexual
activity during sleep, which is a type of parasomnia, or sleepwalking.
Sexsomnia is a form of automatism, or involuntary conduct during a state of
unconsciousness. Trial defense counsel presented evidence of the appellant’s
childhood history of sleepwalking and expert testimony on sexsomnia. A
battle of the experts ensued, as the counsel litigated parasomnia, sexsomnia,
and the effects of alcohol on sleep.
                               II. DISCUSSION
A. Legal and factual sufficiency
   The appellant alleges that his conviction is legally and factually
insufficient on two points: (1) that the evidence failed to show that LCpl JSM
was incapable of consenting to sex because of impairment by alcohol; and (2)
that the appellant was unable to form the necessary criminal intent because
he was unconscious during his sexual act with LCpl JSM.
    We review the legal and factual sufficiency of evidence 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 of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citation omitted). “For
factual sufficiency, the test is whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, the members of the [appellate court] are themselves convinced of


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                        United States v. Clugston, No. 201500326


the accused’s guilt beyond a reasonable doubt.” Id. at 325. “By ‘reasonable
doubt’ is not intended a fanciful or ingenious doubt or conjecture, but an
honest, conscientious doubt suggested by the material evidence or lack of it in
this case. . . . The proof must be such as to exclude not every hypothesis or
possibility of innocence, but every fair and rational hypothesis except that of
guilt.” United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994).
   1. Proof of incapacity to consent to sex because of impairment by alcohol
    It is a sexual assault in violation of Art. 120(b)(3), UCMJ, to “commit[] 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.”
    Proving incapacity to consent to a sexual act because of impairment from
alcohol requires more than proving intoxication. 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).
In delineating that higher evidentiary threshold in Pease, this court pointed
to the definition of consent in the statute: “‘a freely given agreement to the
conduct at issue by a competent person . . . .’” Id. (quoting Art. 120(g)(8),
UCMJ). A competent person has the “physical and mental ability to consent,”
while an incompetent person “lacks either the mental or physical ability to
consent.” Id. The culprit may be alcohol or another “cause enumerated in the
statute.” Id. Lacking the capability to consent to sexual conduct means
“lack[ing] the cognitive ability to appreciate the sexual conduct in question or
the physical or mental ability to make and to communicate a decision about
whether they agreed to the conduct.” Id. In other words, the focus of the
evidentiary inquiry is the alleged victim’s awareness or ignorance of the
sexual conduct pending or in progress and capacity or incapacity to consent to
or oppose it, either verbally or physically.
    While there is ample evidence that LCpl JSM drank alcohol to the point of
intoxication on 7 February 2014, we agree with the appellant that her
impairment did not render her incapable of consenting to a sexual act while
she was awake. On a scale of one to ten, with ten being “passed out, close to
being alcohol poisoned[,]”3 Cpl W described LCpl JSM as a six.4 Cpl S
remembered the appellant being the most intoxicated person and LCpl JSM
being “sober and coherent enough to have a conversation” and not “really
intoxicated.”5


   3   Record at 245.
   4   Id. at 246.
   5   Id. at 307-08.


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                         United States v. Clugston, No. 201500326


    LCpl JSM testified to clear, largely intact memories of that night, up until
she climbed into bed to sleep. She began drinking shortly before 1800 and
consumed about two slices of pizza and more than 12 beers over a six to eight
hour period. On a normal weekend, LCpl JSM drank about eight beers. But
on 7 February, she drank until she “felt too drunk” then decided to call it a
night and head to her barracks room.6 Although she could not walk straight
and leaned on the appellant and Cpl W for support, LCpl JSM climbed the
two flights of stairs to her barracks room under her own power. She
remembered the appellant slumping to the floor of her barracks room, and
when Cpl W could not rouse him, she recalled telling Cpl W, “[l]eave him
there; he’ll be okay.”7 According to Cpl W, LCpl JSM was “laughing and
giggling and just like how drunk people are, like happy drunks.”8 Cpl W and
Cpl S sat down and talked to LCpl JSM for about ten minutes, as she was not
interested in going to sleep. LCpl JSM denied needing help climbing into bed
and insisted she lay on top of the covers. She did not undress, leaving on a
hooded sweatshirt, tank top, bra, a pair of tight skinny jeans, underwear, and
boots. The inconsistencies between her testimony and that of Cpl W and Cpl
S revealed only a few forgotten details. She did not remember that it was a
Friday vice a Saturday, that Cpl S was also in her room, or that Cpl W and
Cpl S removed her boots and made a joke about “tucking her in.”9 By
midnight, both LCpl JSM and the appellant were asleep. Carefully
considering all of this evidence, we conclude that before she fell asleep, LCpl
JSM was capable of consenting to sexual conduct.
    LCpl JSM woke abruptly when she felt “pain in [her] vagina and
something heavy on top of [her.]”10 “[N]early immediate[ly]” or within maybe
as long as a minute, LCpl JSM used her hip to bump the person off of her,11
yelled, “[h]e’s on top of me, he’s on top of me,” and started hitting him in the
face.12 LCpl JSM recognized he was the appellant when she saw his blond
hair by ambient light coming in her window from the parking lot. She
remembered hearing him say, “ouch” and seeing him roll under her bed.13
Because “he didn’t have pants on,” she knew it was the appellant’s penis that


   6   Id. at 273.
   7   Id. at 277.
   8   Id. at 247.
   9   Id. at 309.
   10   Id. at 280.
   11   Id. at 282.
   12   Id. at 252.
   13   Id. at 281-82.


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                      United States v. Clugston, No. 201500326


had penetrated her.14 Remembering that black-haired Cpl W was in the room
and eliminating him as the person she had knocked to the floor, she began
screaming his name. She realized she was not wearing any clothes and saw
them on the floor around her bed. By the time Cpl W turned on the lights in
the room, LCpl JSM was sitting up in bed, covering herself with a blanket.
LCpl JSM described still feeling “a little drunk” when she awoke but
remembering everything clearly.15 Cpl W testified she was awake and able to
articulate what had happened to her.
    As the appellant points out, this case is similar to United States v.
Mohead, No. 201400403, 2015 CCA LEXIS 465, unpublished op. (N-M. Ct.
Crim. App. 29 Oct 2015), rev. denied, 75 M.J. 288 (C.A.A.F. 2016), an
unpublished opinion in which this court found insufficient evidence of the
victim’s incapability to consent because of alcohol impairment. In Mohead,
the victim had also drunk to the point of intoxication and fallen asleep before
waking to the appellant on top of her engaging in sexual intercourse. A
witness in the room heard the victim question the appellant’s actions, tell
him to stop, and remind him that he was like a brother and protector to her.
This court held that the victim’s “actions upon waking indicate she was then
capable of consenting despite the earlier alcohol consumption. While trying to
‘reason with’ the appellant, she articulated her clear understanding of what
was happening, that she thought it was wrong, and that she did not consent.”
Id. at *11. The conviction for sexual assault while the victim “was incapable
of consenting to the sexual act due to impairment by alcohol” was thus set
aside for factual insufficiency. Id. at *10-11. Like the victim in Mohead, LCpl
JSM was able to perceive what was happening to her when she awoke and
communicate her lack of consent.
    However, while the evidence fails to establish that LCpl JSM was
incapacitated due to alcohol during the two periods before she fell asleep and
after she awoke, it is sufficient to find that LCpl JSM’s impairment caused
her to remain asleep long after she should have awoken to the appellant’s
sexual advances.
    Before considering the combined effects of sleep and alcohol, we must
address the members’ decision to acquit the appellant of committing a sexual
act upon LCpl JSM while she slept, in violation of Art. 120(b)(2), UCMJ. The
government charged two provisions of the sexual assault statute for a single
incident, presumably allowing for contingencies of proof. The military judge
did not instruct the members about contingencies of proof, but in his closing
argument, trial counsel told the members, “[s]o it’s not an either-or

   14   Id. at 281.
   15   Id. at 295.


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                      United States v. Clugston, No. 201500326


proposition, he’s actually guilty of both of these offenses. Now, don’t worry
about him being punished double. That’s not going to happen. If you find him
guilty of both of the specifications, they’ll be merged through sentencing.”16
For reasons known only to the members, they found the appellant guilty of a
sexual act upon LCpl JSM when she was incapable of consenting because of
alcohol but not guilty of committing a sexual act upon LCpl JSM while she
was asleep, unconscious, or otherwise unaware.
   The inconsistent verdict does not bind us. Our review of the sufficiency of
the evidence “should be independent of the jury’s determination that evidence
on another count was insufficient.” United States v. Powell, 469 U.S. 57, 67
(1984). We need not set aside the appellant’s conviction “merely because the
verdicts cannot rationally be reconciled.” Id. at 69. The acquittal of sexual
assault while LCpl JSM slept does not prevent us from considering the
evidence supporting that specification in support of the remaining
specification of sexual assault. United States v. Gutierrez, 73 M.J. 172, 175
(C.A.A.F. 2014). Therefore, we may take into account evidence that LCpl JSM
was asleep in analyzing evidence that she was also incapacitated because of
impairment by alcohol.
   The evidence shows that LCpl JSM awoke to find the appellant on top of
her, engaged in intercourse. She had fallen asleep on her back, covered in a
blanket and wearing all of her clothes. While LCpl JSM slept, the appellant
pulled her hooded sweatshirt and tank top over her head and pulled the
sweatshirt sleeves off her arms. He had to lift her torso again to unhook her
bra behind her back and remove it. Her tight skinny jeans had to be
unbuttoned, unzipped, and pulled over her hips and buttocks and all the way
down her legs. LCpl JSM testified that while it was “[n]ot extremely difficult”
to remove her jeans, it “require[d] being sober.”17 Whether the appellant
removed her jeans by pulling from the waistband or the cuffs, LCpl JSM
apparently did not notice. Despite all the manipulation of LCpl JSM’s body
required to remove her clothing, it was not until after the appellant
penetrated her that she awoke.
   LCpl JSM’s failure to wake while the appellant undressed her is
consistent with sleep deepened and prolonged by alcohol. According to LCpl
JSM, she slept more deeply and woke more slowly when she drank. She
described someone needing to shake her awake when she had been drinking.
Expert witnesses testified that alcohol initially increases deep, “slow-wave




   16   Id. at 541.
   17   Id. at 292.


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                         United States v. Clugston, No. 201500326


sleep” and raises the arousal threshold, making it harder to wake the
sleeper.18
   One would reasonably expect the sensation of heavy, tight-fitting clothing
being pulled over the head, off the arms, and down the legs to wake an
ordinary sleeper. We conclude that alcohol dulled LCpl JSM’s senses beyond
the normal effects of sleep and precluded her awareness of actions leading
imminently to sexual conduct. Unable to appreciate what was happening to
her, she was also unable to resist verbally or physically until the pain of
penetration finally woke her. The appellant, who had spent hours drinking
with LCpl JSM that evening and helped her climb the steps to her room,
knew or should have known that she remained asleep despite his removal of
her clothing, and her consumption of alcohol was the likely reason.
    We are convinced, beyond a reasonable doubt, that LCpl JSM remained
asleep through the appellant’s removal of her clothing, which would
reasonably be expected to wake the sober sleeper, and was thus incapable of
consenting to his sexual act because of impairment by alcohol.
    2. Proof the appellant consciously committed the sexual act
   The appellant alleges that the government failed to prove beyond a
reasonable doubt that he was conscious when he committed a sexual act upon
LCpl JSM, thus the government did not prove the voluntary conduct
necessary to convict him of this offense.
    When an accused presents evidence that reasonably calls into question
his or her state of consciousness during the commission of the alleged
offenses and the voluntariness of the conduct, the government must prove
consciousness beyond a reasonable doubt. United States v. Torres, 74 M.J.
154, 157 (C.A.A.F. 2015). In Torres, the Court of Appeals for the Armed
Forces (CAAF) recognized “automatism” as an affirmative defense, despite its
absence from RULE FOR COURTS-MARTIAL (R.C.M.) 91619, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012). 74 M.J. at 157. The CAAF defined
automatism as “‘[a]ction or conduct occurring without will, purpose, or
reasoned intention,’ ‘behavior carried out in a state of unconsciousness or

    18   See Id. at 382, 498, 511.
    19  R.C.M. 916 defines affirmative defenses as “any special defense which,
although not denying that the accused committed the objective acts constituting the
offense charged, denies, wholly or partially, criminal responsibility for those acts.”
R.C.M. 916(a). Once the evidence suggests an affirmative defense might apply, the
burden is on the government to prove beyond a reasonable doubt that the defense did
not in fact exist. Id. at (b)(1). But there are three exceptions, including lack of mental
responsibility stemming from disease or defect, where the burden is on the accused to
prove that the defense existed. Id.


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                     United States v. Clugston, No. 201500326


mental dissociation without full awareness,’ and ‘[t]he physical and mental
state of a person who, though capable of action, is not conscious of his or her
actions,’” and an “‘unconsciousness defense.’” Id. at 156 n.3 (citations omitted)
(alterations in original).20
    The CAAF rejected the military judge’s characterization of epileptic
seizure-induced automatism as a mental disease or defect, finding instead
that automatism belonged in the larger category of affirmative defenses that
the government must disprove beyond a reasonable doubt. Id. at 158. “A
person is not guilty of an offense unless his liability is based on conduct that
includes a voluntary act[,]” and “‘voluntary acts’” do not include bodily
“movements during unconsciousness.” Id. (citing MODEL PENAL CODE § 2.01
(1962)). Automatism, manifesting as involuntary conduct, often in a state of
unconsciousness, implicates not only the mens rea but also the actus reus
necessary to commit a crime. Id. at 157. (“Accordingly, an accused cannot be
held criminally liable in a case where the actus reus is absent because the
accused did not act voluntarily, or where mens rea is absent because the
accused did not possess the necessary state of mind when he committed the
involuntary act.”). Looking at it as two sides of the same coin, the government
must either disprove an accused’s suggestion of involuntary conduct during
unconsciousness or prove consciousness and the voluntariness of the
accused’s conduct to secure a conviction.
    In this case, the appellant reasonably raised an affirmative defense of
automatism with evidence he had a personal and family history of
sleepwalking, or parasomnia. His trial defense counsel offered expert
testimony that his heavy drinking on 7 February triggered an episode of
parasomnia, or more specifically, sexsomnia, during which he engaged in
sexual conduct with LCpl JSM while he was unconscious. As will be
discussed in greater depth when we address AOE 2 infra, the military judge
concluded that the government had the burden to prove the appellant’s
consciousness beyond a reasonable doubt.
    We focus our inquiry into the evidence of the appellant’s consciousness on
his conduct from the moment he arose from LCpl JSM’s barracks room floor
in the early morning hours until she awoke to discover him on top of her.
There is no real dispute that the appellant lay unconscious on the floor

   20 “Clinically automatism or unconsciousness has manifested itself in epileptic
and postepileptic states, clouded states of consciousness associated with organic
brain disease, concussional states following head injuries, schizophrenic and acute
emotional disturbances, metabolic disorders such as anoxia and hypoglycemia, drug-
induced loss of consciousness, sleepwalking, and hypnagogic states.”
Eunice A. Eichelberger, Annotation, Automatism or Unconsciousness as Defense to
Criminal Charge, 27 A.L.R.4th 1067 (1984).


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                         United States v. Clugston, No. 201500326


earlier in the night when Cpl W turned off the lights in the room. By the time
the lights came back on some time later, LCpl JSM had screamed in the
appellant’s ear, and he had landed hard on the floor, received LCpl JSM’s
blows to his face, and been blinded by the sudden illumination of the
overhead lights. The appellant appeared to be aware of what had just
occurred, although it is impossible to know whether he remembered the
sexual act with LCpl JSM or simply deduced it from the circumstances.
Nevertheless, he was awake and conscious. We must determine whether the
government proved he was conscious during the intervening acts in the
darkened room.
    Robust expert testimony on parasomnia revealed significant
inconsistencies between the appellant’s behavior and involuntary actions
during sleep. The government’s expert witness in sleep disorders testified
that “virtually all” reports of sexsomnia involve “routinized, repetitive,
ordinary circumstances, are in the home, in the bed with the usual bed
partner.”21 The rare occasion when sexsomnia affects a stranger usually
occurs when two people fall asleep next to each other. The appellant’s expert
witness gave the example of a father inappropriately touching his daughter
while he slept surrounded by his children in a tent. The defense expert
testified that his clinical practice consisted only of patients who behaved
sexually toward their spouses or partners. He only saw cases of sexsomnia
outside of a relationship in his “legal practice,” which involved consulting and
testifying on legal cases.22
     Complex behavior is also unusual during episodes of parasomnia or
sexsomnia. The government’s expert considered removal of LCpl JSM’s tight-
fitting clothing “far too detailed and not the kind of behavior that a
sleepwalker engages in. And there’s a complexity to it that I don’t feel is
consistent with parasomnia.”23 When asked about the kind of complex
behavior that can occur during parasomnia, the appellant’s expert cited
driving a car. While driving can necessitate clear-eyed perception and sharp
reflexes, it is often a routine, repetitive behavior described as second-nature.
    Even if there is lingering doubt about the appellant’s consciousness, his
affirmative defense of automatism survives only if the evidence points to
parasomnia as opposed to voluntary intoxication alone. See Torres, 74 M.J. at
158 (holding that the trial court’s failure to hold the government to its burden
of proving consciousness was harmless beyond a reasonable doubt in light of


   21   Record at 480.
   22   Id. at 393.
   23   Id. at 491.


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                        United States v. Clugston, No. 201500326


the government’s effective rebuttal of Torres’ shaky evidence of epileptic
seizure-induced automatism and his diagnosis of alcohol abuse).
    The primary evidence that the appellant suffered from sexsomnia was his
family and personal history of parasomnia. But his sleepwalking experiences
were distant in time and very different from the acts alleged. The appellant’s
father testified about regularly finding the appellant out of bed in the middle
of the night as a child, looking for something in the refrigerator or in a
cabinet, while asleep. The most recent parasomnia episode cited occurred
shortly after the appellant enlisted in the Marine Corps, eight or nine years
before the night of 7 February 2014. During that incident, the appellant, who
had been drinking, headed out the front door of his parents’ home in the early
morning hours. When his father questioned where he was going, the
appellant responded, “[w]ell, I’ve got to go and take care of this” but was
asleep.24
    The appellant presented no evidence of more recent parasomnia or any
incidents of sexual activity while asleep. His wife of eight years never
witnessed any parasomnia or sexsomnia; however, the appellant always
refrained from drinking alcohol around her. Nevertheless, he was unable to
offer a former roommate, fellow Marine, friend, or any other witness who
could relay an occasion of parasomnia in a barracks room, on a deployment,
or after a night of drinking with friends.
    The counsel vigorously litigated the role of alcohol in precipitating
parasomnia. The appellant’s expert identified alcohol, exercise, and stress as
risk factors for parasomnia in someone predisposed to it. While it appears
conditions were ideal for the appellant to experience parasomnia the night of
7 February, those conditions were hardly unique. It again begs the question
why he had not walked or otherwise acted out in his sleep in eight or nine
years, whether sober or intoxicated. Alcohol’s role amplifying early phases of
deep sleep and destabilizing the transition out of deep sleep helps explain the
timing of the appellant’s actions. But the increased likelihood that the
appellant would stir when he did does not point to parasomnia over a simple
interruption in drunken sleep. The appellant’s disorientation in the minutes
after LCpl JSM tossed him off her may be consistent with someone
experiencing parasomnia, but it is nearly ubiquitous in inebriation. When
asked how he knew the appellant suffered from sexsomnia as opposed to an
“exclusively . . . alcohol-related event,” the appellant’s expert witness pointed
only to the appellant’s good military character.25



   24   Id. at 320.
   25   Id. at 365-66, 372-73.


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                     United States v. Clugston, No. 201500326


    The evidence that supported sexsomnia as a hypothesis about the
appellant’s behavior does not ultimately survive scrutiny. We are convinced
beyond a reasonable doubt that the appellant did not suffer from an episode
of parasomnia or sexsomnia when he committed a sexual act on a sleeping
LCpl JSM. Ultimately, we need not decide whether the government proved
consciousness beyond a reasonable doubt, because as we will discuss next,
unconsciousness resulting from nothing more than voluntary intoxication is
not a defense to sexual assault.
B. Military judge’s instructions on unconsciousness and voluntary
intoxication
    The appellant argues that the military judge erroneously conflated
instructions about his possible unconsciousness and voluntary intoxication
and prejudiced him by preventing the members’ full consideration of his
defense of parasomnia.
    We review a military judge’s instructions to members de novo. Torres, 74
M.J. at 157 (citing United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.
2002)). A military judge’s instructional error is harmless if it is “‘clear beyond
a reasonable doubt that a rational jury would have found the [appellant]
guilty absent the error.’” Id. at 157 (quoting McDonald, 57 M.J. at 20).
   1. Automatism and Torres
    Having concluded that automatism implicated the actus reus as well as
the mens rea of an offense in Torres, the CAAF established an instructional
requirement. 74 M.J. at 158. “[I]n those cases where the evidence reasonably
raises the issue of automatism, military judges must instruct panels
accordingly.” Id. The CAAF did not suggest specific language for such an
instruction, but two points are necessary: (1) “automatism may serve to
negate the actus reus of a criminal offense[,]” and (2) the government has the
burden to disprove automatism and prove conscious, voluntary conduct
beyond a reasonable doubt. Id.
    Mindful of this newly published Torres opinion, the military judge in this
case concluded that evidence of the appellant’s sleepwalking triggered the
need for the automatism instruction. But evidence of the appellant’s
voluntary intoxication also necessitated an instruction that voluntary
intoxication was not a defense. The military judge instructed the members as
follows:
          The accused is not guilty of sexual assault if he acted while
       unconscious. Someone is unconscious when he or she is not
       conscious of his or her actions. Someone may be unconscious
       even though able to move. Unconscious acts may be caused by
       parasomnia, or sleepwalking.


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                       United States v. Clugston, No. 201500326


             The defense of unconsciousness may not be based upon
         voluntary intoxication. Voluntary intoxication is not a defense
         to sexual assault. A person is voluntarily intoxicated if he
         becomes intoxicated by willingly using any intoxicating drink
         or other substance knowing that it could produce an
         intoxicating effect. If you conclude that the accused’s actions
         were a result of voluntary intoxication, then the accused’s state
         of consciousness or lack thereof shall not be considered as a
         defense to the offense.
            The Government must prove beyond a reasonable doubt
         that the accused was conscious when he acted. If there is proof
         beyond a reasonable doubt that the accused acted as if he were
         conscious, you should conclude that he was conscious, unless
         based on all of the evidence, you have a reasonable doubt that
         he was conscious, in which case you must find him not guilty.26
    Before turning to the appellant’s allegations about the voluntary
intoxication instruction, we find that the instructions given contained the
necessary elements mandated in Torres. The military judge clearly instructed
the members that unconsciousness negated guilt and assigned the burden of
proving consciousness beyond a reasonable doubt to the government.
   2. Voluntary intoxication
    R.C.M. 916 specifically excludes voluntary intoxication as an affirmative
defense, with one exception. R.C.M. 916(l)(2). An accused may offer evidence
of voluntary intoxication “for the purpose of raising a reasonable doubt as to
the existence” of a mens rea when that mens rea is a required element of the
offense. Id. The sexual assault offenses alleged in this case required only
general intent, not specific intent. The military judge concluded, with trial
defense counsel’s agreement,27 that an instruction regarding voluntary
intoxication as an affirmative defense to sexual assault did not apply in this
case. For this reason, we disagree with the appellant’s contention that the
military judge improperly “conflate[d] voluntary intoxication, a factor that
goes to the mens rea of an offense, with unconsciousness, which as CAAF
held in Torres, would negate the actus reus of an offense.”28 Instead, the
military judge gave an instruction about “the difference between somebody




   26   Id. at 534.
   27   Appellate Exhibit (AE) XXXII at 4.
   28   Appellant’s Brief and Assignment of Error of 11 Feb 2016 at 23.


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                        United States v. Clugston, No. 201500326


who is acting [involuntarily] out of parasomnia and somebody who is acting
[involuntarily] out of intoxication[.]”29
    The military judge’s instructions highlighting the law regarding
voluntary intoxication and the defense of unconsciousness are consistent with
R.C.M. 916 and the Model Penal Code provisions on which the CAAF relied
so heavily in Torres. 74 M.J. at 158. R.C.M. 916 specifically excludes
“voluntary intoxication” as an affirmative defense. R.C.M. 916(l)(2) (emphasis
added). The Model Penal Code provision on Intoxication mirrors R.C.M.
916(l)(2): “Except as provided in Subsection (4) of this Section, intoxication of
the actor is not a defense unless it negatives an element of the offense.”
MODEL PENAL CODE § 2.08(1) (1962). Subsection (4) draws the distinction
between voluntary and involuntary intoxication and goes beyond mens rea to
implicate actus reus: “Intoxication that (a) is not self-induced or (b) is
pathological is an affirmative defense if by reason of such intoxication the
actor at the time of his conduct lacks substantial capacity either to appreciate
its criminality . . . or to conform his conduct to the requirements of the law.”
Id. § 2.08(4). In other words, involuntary intoxication may negate both the
mens rea and actus reus of an offense and thus qualify as unconsciousness
and automatism, but voluntary intoxication does not.
   Finding no military instructions addressing evidence reasonably raising
both automatism and voluntary intoxication, the military judge borrowed
language from the California jury instructions on Unconsciousness30 and
Voluntary Intoxication Causing Unconsciousness: Effects on Homicide
Crimes.31 Trial defense counsel conceded that “the defense of unconsciousness


   29   Record at 88.
   30 California state courts use the following instruction on unconsciousness as a
defense:
         The defendant is not guilty of . . . if (he/she) acted while unconscious.
         Someone is unconscious when he or she is not conscious of his or her
         actions. [Someone may be unconscious even though able to move.]
         Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic
         seizure[,]/ [or] involuntary intoxication[,]/ . . .).
         [The defense of unconsciousness may not be based on voluntary
         intoxication.]
JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS (CALCRIM) No.
3425 (2016 ed.).
   31 “A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.”
CALCRIM No. 626.


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                         United States v. Clugston, No. 201500326


may not be based on voluntary intoxication”32 but was concerned that
members might interpret the instructions to dictate that the voluntary
intoxication which precipitated the appellant’s alleged parasomnia actually
negated his defense. To alleviate this concern, trial defense counsel proposed
instructions that accommodated voluntary intoxication as a “contributing
factor” to parasomnia and excluded unconsciousness that was “solely a result
of voluntary intoxication” and “based just on voluntary intoxication.”33 The
military judge rejected the proposed changes, believing they did not
adequately state the law.34
    The appellant argues that the military judge’s ultimate instructions
misstated the law and misled the members into believing that the appellant’s
voluntary intoxication disqualified him from the affirmative defense of
unconsciousness. We disagree. Although the military judge did not address
the relationship between parasomnia and voluntary intoxication in her
instructions, she presented them separately as independent causes of
unconsciousness. She directed the members to consider “all of the evidence,”
which included extensive testimony about parasomnia and its precipitating
factors, as a potential source of reasonable doubt as to the appellant’s
consciousness.35 If the members found reasonable doubt, they were to find the
appellant not guilty, not just unconscious. This distinction favored the
appellant because it prompted the members to acquit him without reminding
them to distinguish between parasomnia and voluntary intoxication as the
cause of his unconsciousness.36 But even assuming arguendo there was error
in the military judge’s instructions, we find that error harmless beyond a
reasonable doubt.




   32   Record at 453.
   33   AE XLII at 1 (emphasis added).
   34   AE XLIII at 1.
   35 Record at 534. See People v. Mathson, 149 Cal. Rptr. 3d 167, 183-84, 189 (Cal.
App. 3d Dist. 2012) (finding that jurors should be instructed to consider all evidence
about the proffered cause of unconsciousness before concluding the accused was
conscious).
   36  See Record at 455. The military judge cited Mathson as a model for her
instructions. The Mathson court specifically criticized steering members toward a not
guilty verdict before requiring them to determine the cause of unconsciousness.
Mathson, 149 Cal. Rptr. 3d at 189. (“A defendant who was unconscious may still be
found guilty if the intoxication was voluntary. Because the last sentence compels the
jury to reach a not guilty verdict instead of compelling a finding regarding
unconsciousness, that sentence is potentially confusing.”)


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                   United States v. Clugston, No. 201500326


    Faced with two possible interpretations of an instruction, we are
confident that the members would not choose an interpretation that rendered
the preceding evidence, arguments, and instructions moot. “[I]nstructions are
not to be considered in a vacuum[.]” United States v. Woodard, 17 C.M.R. 813,
835 (A.F.B.R. 1954). The evidence of the appellant’s voluntary intoxication on
7 February 2014 was not in dispute. If the members believed voluntary
intoxication automatically disqualified him from the defense of parasomnia,
they would have to reconcile their interpretation with an absurdly
incongruent court-martial. They would have to believe that the appellant bet
his future on an unavailable defense, trial defense counsel and trial counsel
both suffered from the same misunderstanding of the law, and for no
apparent reason, the military judge required the government to prove
consciousness beyond a reasonable doubt. Instead, we are convinced beyond a
reasonable doubt that the members interpreted the instruction to leave
parasomnia on the table as an available affirmative defense, even in light of
the appellant’s voluntary intoxication. We believe that rational members
would have reached the same verdict absent this purported instructional
error, thus we find no merit in this AOE.
C. Unconstitutional vagueness of Article 120(b)(3)(A), UCMJ
   Finally, the appellant avers that Article 120(b)(3)(A), UCMJ, is
unconstitutionally vague, both on its face and as applied, because the term
“impairment” does not provide sufficient notice of the prohibited conduct.
   In United States v. Solis, 75 M.J. 759, 763 (N-M. Ct. Crim. App. 2016), we
held that Article 120(b)(3) is not unconstitutionally vague, because it “does
not 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.” Under this binding precedent, the
appellant’s AOE fails.
                              III. CONCLUSION
    The findings and sentence as approved by the convening authority are
affirmed.
   Judge FULTON and Judge GLASER-ALLEN concur.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court


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