UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, LEVIN, 1 and WOLFE
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                        Staff Sergeant RICARDO E. CHINCHILLA
                               United States Army, Appellant

                                         ARMY 20150266

            Headquarters, United States Army Maneuver Center of Excellence
                 Charles A. Kuhfahl, Jr., Military Judge (arraignment)
                     Christopher D. Carrier, Military Judge (trial)
                   Colonel Charles C. Poché, Staff Judge Advocate


For Appellant: Captain Joshua G. Grubaugh, JA; Sean A. Marvin, Esq.; David P.
Sheldon, Esq. (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).

                                          18 August 2017
                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LEVIN, Judge:

       In this appeal, we are asked to decide whether there was sufficient evidence to
convict appellant of a sexual assault involving a fellow soldier, passed out on her
bed, after he witnessed her consume no fewer than eight alcoholic drinks only hours
earlier. We find the evidence legally and factually sufficient to support the
conviction.

       A general court-martial panel consisting of commissioned and non-
commissioned officers convicted appellant, contrary to his pleas, of one
specification of sexual assault, in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. Appellant was acquitted of two
specifications also alleging sexual assault arising out of the same incident. The

1
    Judge LEVIN took final action while on active duty.
CHINCHILLA—ARMY 20150266

convening authority approved the adjudged sentence to a dishonorable discharge,
confinement for two years, and reduction to Private E1.

      We review this case under Article 66, UCMJ. Appellant raises three errors,
one of which merits discussion, but no relief. 2

                                   BACKGROUND

       To celebrate America’s birthday, several soldiers arranged to meet in Myrtle
Beach, South Carolina, over the 4 July 2014 weekend. Many had never met one
another before, to include appellant and his victim, SFC KM. Rather than gorging
on hot dogs and apple pie, the celebration involved drinking to excess. Over a
course of several hours, appellant intermittently observed SFC KM consume no
fewer than two Jell-O shots, 3 two Fireballs, 4 two mixed drinks and two beers. A
conservative estimate suggests that SFC KM drank at least 13 alcoholic drinks that
evening. Based on the testimony of several witnesses, there was no question that
SFC KM was drunk by the time she passed out on a bed in a hotel suite she shared
that night with eight other soldiers and two civilians. 5

      Within minutes after others had turned out the lights and gone to bed,
appellant crawled into SFC KM’s bed, removed her clothing, and engaged in sexual



2
 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserts ineffective assistance of counsel in that his counsel failed to
cross-examine the victim on statements she may have made to a law enforcement
official prior to trial. This matter does not warrant relief.
3
 An alcoholic beverage consisting of liquor incorporated into sweetened gelatin
dessert and chilled in a small container. English Oxford Living Dictionaries, Oxford
University Press, available at
https://en.oxforddictionaries.com/definition/us/jello_shot (last visited 9 Aug. 2017).
4
 Although “Fireball” was not defined, it is clear in context that the reference is to
an alcoholic drink.
5
  Three witnesses, in addition to SFC KM herself, described her as “drunk,”
“trashed,” and “pretty hammered.” Significantly, appellant also testified that SFC
KM was “drunk,” before catching himself and stating “well, not drunk, but drinking
like everyone else, sir.” The record demonstrates that everyone else was drinking
heavily.


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intercourse. 6 Sergeant First Class KM realized what was happening, screamed, and
pushed away appellant, who then scurried out of the room to a hotel nearby. 7
Sergeant First Class KM, meanwhile, began crying and hyperventilating.

      On 5 July 2014, at approximately 1000, SFC KM reported the assault to the
Myrtle Beach Police Department and thereafter underwent an intrusive Sexual
Assault Forensic Exam. Later, SFC KM made a statement to the United States Army
Criminal Investigation Command (CID).

       Appellant also made a statement to CID and testified in his own defense at
trial. According to appellant, SFC KM kicked him twice while he lay on the floor
next to her bed, and he responded by saying, “You know it is Rick. What do you
want? Do you want to hook up or something?” Appellant further testified that SFC
KM then “gave [him] a look with a nod[,]” which he managed to see in the darkened
room. In response to this supposed look, appellant testified that he told SFC KM
that “you need to scoot over and make room for me in the bed then.” In the minutes
that followed, to ensure that SFC KM “wanted to do” this, appellant testified that he
then told SFC KM, “Hey, if you want to do this, you have to put me inside of you.”
Although several witnesses testified they were in the hotel suite that night, just a
few feet away from appellant and still awake, no one heard these purported
statements.

                             LAW AND DISCUSSION

       We conduct a de novo review of legal and factual sufficiency. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F.2002). Article 66(c), UCMJ, requires us
to conduct a plenary review of the record and “affirm only such findings of guilty
and the sentence or such part or amount of the sentence, as [we] find[ ] correct in
law and fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ, 10 U.S.C. § 866 (2012). A complete Article 66, UCMJ, review
is a “substantial right” of an accused. United States v. Jenkins, 60 M.J. 27, 30
(C.A.A.F. 2004). As our superior court has instructed, we have an “affirmative
obligation to ensure that the findings and sentence in each such case are ‘correct in
law and fact . . . and should be approved.’” United States v. Miller, 62 M.J. 471,
472 (C.A.A.F. 2006) (alteration in original) (quoting Article 66(c), UCMJ).



6
 Based on witness testimony, these events occurred sometime between 0200 and
0300 on 5 July 2014.
7
 While appellant testified that the interaction with his victim lasted approximately
15 minutes, several other witnesses testified that appellant’s physical contact with
SFC KM lasted between two and five minutes.
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      The test for factual sufficiency “is whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses,” the court is “convinced of the accused's guilt beyond a reasonable
doubt.” United States v. Turner, 25 MJ 324, 325 (CMA 1987).

       The test for legal sufficiency requires courts to review the evidence in the
light most favorable to the government. If any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt, the evidence is
legally sufficient. Turner, 25 MJ 324 (CMA 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)).

      Here, appellant was convicted of a violation of Article 120(b)(3), UCMJ,
which provides that it is a sexual assault 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.”

       Viewed as a whole, we hold that the evidence is legally sufficient for a
rational factfinder to find beyond a reasonable doubt that appellant committed the
charged offense. Although our discussion below is focused on the legal sufficiency
of the evidence, we also find the evidence to be factually sufficient.

         1. Incapacity to Consent to Sex because of Impairment by Alcohol

       “Proving incapacity to consent to a sexual act because of impairment from
alcohol requires more than proving intoxication.” United States v. Clugston, 2017
LEXIS 43, *6 (N.M. Ct. Crim. App. 31 Jan. 2017) (citing 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
Clugston, our sister court relied on its previous assessment in Pease pointing 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). The court
reasoned:

             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 or 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
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             pending or in progress and capacity or incapacity to
             consent to or oppose it, either verbally or physically.

Id. at *6-7 (quoting Pease, 74 M.J. at 770).

       The facts of this case are similar to those in Clugston, and we agree with our
sister court’s reasoning in that case. In Clugston, there was ample evidence that the
victim drank alcohol to the point of intoxication, but that her impairment did not
render her incapable of consenting to a sexual act while she was awake. Id. at *7.
The victim’s impairment due to intoxication, however, prohibited the victim from
being awakened as Clugston removed her clothes and penetrated her, thus rendering
Clugston’s act a sexual assault. Id. at *11.

              2. Sergeant First Class KM was Incapable of Consenting
                       Because of her Impairment by Alcohol

        Here, there was evidence that SFC KM maintained clear, largely intact
memories of that night, up until she climbed into bed and passed out. She and others
left the hotel and began drinking shortly after 2100. Sergeant First Class KM
consumed at least thirteen alcoholic drinks and possibly as many as nineteen.
Although she was acting as a “funny drunk” and did not remember the cab ride back
to the hotel, SFC KM managed to return to the hotel suite and participate in a
coherent conversation, during which she made a reasonable assessment of the
situation. She remembered telling her male friend, SSG PC, that she wanted him to
sleep in the bed with her, fully clothed, because she did not trust appellant, as a
result of interactions earlier that evening. Sergeant First Class KM purposely did
not undress, leaving on a black skirt and a body suit. Thereafter, SFC KM was
asleep.

       Shortly after everyone had gone to bed, SSG PC got up from the bed he had
been sharing with SFC KM and went to the bathroom. He was gone for
approximately three minutes. Upon his return, SSG PC noticed that the bed covers
had shifted, prompting him to say, “Hey, leave me some blanket.” When she heard
SSG PC’s voice, SFC KM immediately felt a penis penetrating her vagina, her arms
by her side. She then realized appellant was on top of her, and she began screaming,
kicking and “freaking out.” Staff Sergeant PC turned on the lights, also saw SFC
KM pushing appellant off of her, and started yelling at appellant. After appellant
ran away, SFC KM began rocking back and forth in bed, covering herself with a
blanket. Sergeant First Class KM described still feeling “drunk” at this point but
remembered everything clearly. Several witnesses testified that SFC KM was able
to articulate what had happened to her once she calmed down.

      While the evidence fails to establish that SFC KM was incapacitated due to
alcohol at certain times that night, it is sufficient to find that SFC KM’s impairment
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caused her to remain asleep long after she should have awakened to appellant's
sexual advances. As appellant committed the sexual act, SFC KM remained
incapable of consenting due to that impairment.

        Just as in Clugston, before considering the combined effects of sleep and
alcohol, we must address the members’ decision to acquit appellant of committing a
sexual act upon SFC KM while she slept, in violation of Art. 120(b)(2), UCMJ. The
government charged three provisions of the sexual assault statute for a single
incident, presumably allowing for contingencies of proof. In his closing argument,
trial counsel told the members, “you can find [appellant] guilty of all three of these
or you can find him guilty of just one or just two. The government does not want
you to concern yourself with whether that means somehow that the maximum
punishment is going to be increased. Moving towards sentencing, there are methods
by which these can be combined to ensure that that does not occur.” For reasons
known only to the members, they found appellant guilty of a sexual act upon SFC
KM when she was incapable of consenting due to impairment by an intoxicant, but
not guilty of committing a sexual act upon SFC while she was asleep.

       Our review of the legal 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 appellant's
conviction “merely because the verdicts cannot rationally be reconciled.” Id. at 69.
Thus, we are not bound 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 SFC KM was asleep at certain points in analyzing evidence that she
was incapacitated because of impairment by alcohol.

       The evidence shows that SFC KM had fallen asleep wearing all of her clothes.
While SFC KM slept, appellant climbed into her bed and removed her clothing.
Sergeant First Class KM did not notice. Despite all the manipulation of SFC KM’s
body that was required to remove her clothing, it was not until after another soldier
in the room spoke that SFC KM realized what was happening and immediately began
screaming.

       Sergeant First Class KM’s failure to wake while appellant undressed her is
consistent with sleep deepened and prolonged by alcohol. On cross-examination, a
defense expert witness testified that “studies [show] that the first half of the night
alcohol is seen to cause someone to sleep harder . . . and [make him or her] more
difficult to arouse.”

       One would reasonably expect the sensation of snug clothing either being
pulled down past one’s waist, knees, and legs or being pulled up and over one’s arms
and head to wake an ordinary sleeper. We conclude that alcohol dulled SFC KM’s
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senses beyond the normal effects of sleep and precluded her awareness of appellant’s
actions leading imminently to sexual conduct. Unable to appreciate what was
happening to her, she was also unable to resist verbally or physically until she heard
the sound of another soldier’s voice. Appellant, who had spent hours observing SFC
KM drink that evening and pass out on the bed, knew or should have known that she
remained asleep as he removed her clothing. Her consumption of alcohol, an
intoxicant, was the reason. Likewise, appellant knew or should have known that
SFC KM’s consumption of alcohol had incapacitated her during the sexual act.
Thus, we find the evidence to be legally sufficient.

       After making allowances for not having observed the witnesses, we are
convinced beyond a reasonable doubt of appellant's guilt. We find appellant's self-
serving version of the encounter not credible. Two witnesses testified that upon
returning to the hotel suite after celebrating, they had offered to pay for a cab so that
appellant could go to another hotel. Appellant declined their offer and chose to
sleep instead on the floor next to SFC KM’s bed. Although appellant denied this
conversation took place, we find the objective witnesses to be credible and find
further that appellant’s declination of the offer fits with the evidence that he laid in
wait to take advantage of SFC KM’s impaired state at the first opportunity. That
opportunity presented itself when SSG PC went to the bathroom. According to SSG
PC, appellant was still on the floor when he got out of bed. During the three
minutes SSG PC was out of the room, appellant crawled into bed, removed SFC
KM’s clothing and engaged in intercourse. Although appellant testified the
interaction lasted approximately fifteen minutes, several witnesses testified that
appellant’s contact with SFC KM lasted between two to five minutes. 8

       Finally, as to appellant’s testimony that he sought clarity and permission from
SFC KM prior to engaging in sexual contact with her, we find no reason why others
in the room – awake and only a few feet away – would not have heard the exchanges,
unless, of course, they did not occur.

       The idea that a defendant, or accused in the military context, testifies at his
own peril is best summed up by the United States Court of Appeals for the Eleventh
Circuit in United States v. Williams, 390 F. 3d 1319 (11th Cir. 2004):

             “Defendants in criminal trials are not obliged to testify.
             And a defendant who chooses to present a defense runs a

8
  Although a number of witnesses testified contrary to SSG PC and claimed that
appellant was already in bed prior to SSG PC’s use of the bathroom, these witnesses,
all of whom acknowledged they were intoxicated, contradicted each other and
appellant in several respects. In any event, the inconsistent testimony on this point
only goes to whether appellant planned out his assault and not whether SFC KM was
incapable of consenting to his sexual act because of impairment by alcohol.
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             substantial risk of bolstering the Government's case.”
             United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.
             1988). “Most important, a statement by a defendant, if
             disbelieved by the jury, may be considered as substantive
             evidence of the defendant's guilt.” United States v.
             Brown, 53 F.3d 312, 314 (11th Cir. 1995). “By
             ‘substantive’ we mean evidence adduced for the purpose
             of proving a fact in issue as opposed to evidence given for
             the purpose of discrediting a witness (i.e., showing that he
             is unworthy of belief), or of corroborating his testimony.”
             Id. This Circuit has said that “when a defendant chooses
             to testify, he runs the risk that if disbelieved the jury
             might conclude the opposite of his testimony is true.” Id.
             (citations omitted).

Id. at 1325. “Where some corroborative evidence of guilt exists for the charged
offense . . . and the defendant takes the stand in [his] own defense, the Defendant's
testimony, denying guilt, may establish, by itself, elements of the offense.” Id. at
1326 (citation omitted). Of special note to appellant’s situation, the Williams court
concluded that “[t]his rule applies with special force where the elements to be
proved for a conviction include highly subjective elements: for example, the
defendant’s intent or knowledge.” Id. at 1326 (internal quotation marks and citation
omitted).

      After evaluating the evidence, we ourselves are convinced beyond a
reasonable doubt that SFC KM remained passed out and asleep through appellant's
removal of her clothing, which would reasonably be expected to wake the sober
sleeper, and was incapable of consenting to appellant’s sexual act because of
impairment by alcohol.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge WOLFE concur.

                                       FOR THE COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of
                                       Clerk of Court
                                                Court


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