UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                         CAMPANELLA, HERRING, and PENLAND
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Sergeant GARRETT B. SINGLETON
                            United States Army, Appellant

                                      ARMY 20150099

                              Headquarters, Fort Bliss
                        Timothy P. Hayes, Jr., Military Judge
                   Colonel Karen H. Carlisle, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA;
Lieutenant Colonel Gregory A. Marchand, JA (on brief).


                                       24 August 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 -----------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       In this case, we find a substantial basis in law and fact to question appellant’s
plea to two Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2012)
[hereinafter UCMJ] offenses wherein appellant admitted his belief that the victim
consented to the touching was incorrect, but did not explain why his mistake of fact
as to consent was unreasonable before the assaults occurred.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general regulation, maltreatment of a
subordinate (two specifications), and assault consummated by battery (two
specifications) in violation of Articles 92, 93, and 128, UCMJ. The military judge
sentenced appellant to a bad-conduct discharge, confinement for fourteen months,
and reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening
SINGLETON—ARMY 20150099

authority approved only so much of the adjudged sentence as provided for a bad-
conduct discharge, confinement for nine months, and reduction to the grade of E-1.

      This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error that have no merit. We find, however, one additional error
that merits discussion and relief.

                                  BACKGROUND

  A. Violating a Lawful General Regulation and Assault Consummated by Battery

       Appellant directly supervised Specialist (SPC) SL after she completed AIT
and arrived at Fort Bliss in the summer of 2012. There, they began an inappropriate
“pseudo dating relationship.” The two went to church and dinners together. They
attended a wedding with one another. Appellant took SPC SL to meet his mother.
Appellant also bought SPC SL an expensive electric violin and gave her $800 in
cash for transportation. Significantly, the two had also consensually engaged in oral
sexual activity and had intimate sexual encounters with one another using a “dildo
type vibrator” which they purchased together.

       On 8 May 2013, appellant and SPC SL went to her barracks room together.
Once in the room, appellant pulled down SPC SL’s pants and underwear, touched her
genitalia with his hand, and then proceeded to have sexual intercourse with SPC SL.
While the sexual act was occurring, SPC SL put her hands on appellant’s chest and
said she had to go to the bathroom. Appellant stopped and SPC SL went to the
bathroom. Specialist SL was menstruating at the time and her underwear and
bedding became bloodied as a result.

      The government charged appellant with, inter alia, sexual assault of SPC SL
and abusive sexual contact of SPC SL. Prior to trial, appellant entered into a pretrial
agreement wherein he agreed to plead guilty to two specifications of assault
consummated by battery instead of the sexual offenses, in exchange for a cap on his
sentence to confinement. In accordance with his pretrial agreement, appellant also
entered into a stipulation of fact.

        During the providence inquiry, the military judge advised appellant of the
elements of assault consummated by battery as alleged, including: 1) bodily harm–
any physical injury to or offensive touching of another person, however slight; 2)
touching SPC SL’s vulva with his penis and hand; and 3) with unlawful force. The
military judge further explained that the acts must have been done without legal
justification or excuse and without the lawful consent of the victim.

      The military judge then proceeded to allow appellant to explain why he
believed he was guilty of these offenses. Appellant explained that at the time he

                                          2
SINGLETON—ARMY 20150099

was engaged in the sexual acts, he thought the touching was consensual, but looking
back at the text messages he received the following day, as well as the statements
the victim gave to CID, he now realized “that was not the case” and that his belief
was unreasonable. The discussion continued:

            MJ: So although you say at the time you believed it was
            consensual, you knew as early as the next day that it was
            not consensual?

            ACC: Yes, Your Honor, because it was after the event. So
            when it happened, I--I thought that it was consensual, up
            until the next day when she texted me, and further--and
            obviously later, when I got the reports from CID, her
            statements, that’s when I saw that [] I was mistaken, Your
            Honor.

            MJ: Okay, and you had said before that your mistake was
            unreasonable. What is it about looking back on it now,
            the events of the actual touching and anything that
            occurred after that, which leads you to believe that your
            belief was unreasonable?

            ACC: Your Honor, she texted me the next morning,
            saying that she did not want that. So from there--from
            there on, my--I--that’s when I realized that my judgement
            was unreasonable.

            MJ: Okay

            ACC: She also [] during the act, she also didn’t look at
            me, and she placed her hand on my chest and told me that
            she wanted to go to the restroom, and that’s when she
            went to the restroom from there. But again, Your Honor, I
            didn’t know until I got that text message the next morning,
            Your Honor.

            MJ: Okay, but the text message coupled with the signs
            that you were receiving that she didn’t look at you, she put
            her hand on your chest, and she said she wanted to go to
            the bathroom, all those things lead you to conclude that
            your--any belief you had that it was consensual was an
            unreasonable belief?

            ACC: In retrospect, roger. Yes, Your Honor.

                                         3
SINGLETON—ARMY 20150099


               MJ: And I believe there was also quite a bit of bleeding,
               um, that occurred because she was on her menstrual cycle
               at the time?

               ACC: Yes, Your Honor.

               MJ: Would you--could you conclude from that that
               perhaps she wasn’t interested in sexual intercourse,
               because she was on her menstrual cycle at the time too?

               ACC: In retrospect, yes, Your Honor.

       The stipulation of fact in this case does not specifically address facts
supporting why appellant’s mistake of fact was unreasonable and merely repeats the
elements of the offense, stating that during the sexual acts SPC SL did not look at
the accused and was offended by the touching and penetration.

      The military judge found appellant provident to the two Article 128, UCMJ,
offenses and accepted his plea of guilty.

                           B. Maltreatment of a Subordinate

       Appellant also supervised SPC KH * who had been a victim of family violence
and had a no-contact order between her and her then-husband. Specialist KH had to
choose someone to transport her son to her then-husband because of the no-contact
order. She chose appellant because he “was always willing to help.” The first few
times appellant assisted with her son there were no issues; then appellant started to
inappropriately text SPC KH. She testified that the text messages upset her because
appellant offered to help her release some stress by “practicing making babies” and
mentioned her son’s name. Appellant followed up the unwanted text messages by
bringing up the same subject while she was working CQ. For these actions,
appellant was charged with, and convicted of, two specifications of maltreatment of
a subordinate.

                              LAW AND DISCUSSION

      We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
“In doing so, we apply the substantial basis test, looking at whether there is
something in the record of trial, with regard to the factual basis or the law, that
would raise a substantial question regarding the appellant's guilty plea.” Id.


*
    By the time of trial, her name had changed from KH to KR.
                                           4
SINGLETON—ARMY 20150099


        In order to establish an adequate factual predicate for a guilty plea, the
military judge must elicit “factual circumstances as revealed by the accused himself
[that] objectively support that plea[.]” United States v. Davenport, 9 M.J. 364, 367
(C.M.A. 1980). It is not enough to elicit legal conclusions; the military judge must
elicit facts to support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331
(C.A.A.F. 1996). The record of trial must reflect not only that the elements of each
offense charged have been explained to the accused, but also “make clear the basis
for a determination by the military trial judge . . . whether the acts or the omissions
of the accused constitute the offense or offenses to which he is pleading guilty.”
United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). The
fundamental requirement of a plea inquiry under Care and Rule for Courts-Martial
(R.C.M.) 910 “involves a dialogue in which the military judge poses questions about
the nature of the offense and the accused provides answers that describe his personal
understanding of the criminality of his or her [sic] conduct.” United States v.
Medina, 72 M.J. 148, 149 (C.A.A.F. 2013) (internal citations omitted).

       Appellant raised the defense of mistake of fact as to consent when he told the
military judge that at the time he engaged in the sexual acts with SPC SL—with
whom he had previously engaged in consensual relationship that included sexual
relations—he thought the touching was consensual. Appellant followed up by saying
that looking back at the text messages he received the following day, as well as the
statements the victim gave to CID, he now realized his belief was “unreasonable.”
Yet his statements to the military judge indicate his belief that SPC SL was
consenting was incorrect based on events occurring after the touching, not that his
belief was unreasonable at the time of the touching. It is not enough for the military
judge to have just elicited the legal conclusion that appellant’s mistake of fact was
unreasonable; he also needed to elicit facts to support the unreasonableness of
appellant’s belief at the time of the contact with SPC SL. Outhier, 45 M.J. at 331.

       All that is clear from the providence inquiry is that SPC SL did not make eye
contact with appellant while they had sexual intercourse, SPC SL was bleeding due
to her menstrual cycle, and SPC SL put her hands on appellant’s chest—so he
stopped having intercourse with her. Appellant did not explain why his belief that
SPC SL was consenting to the contact was unreasonable at the time. He only agreed
his belief was “unreasonable” in light of events that happened after he touched SPC
SL and the sexual act began. Thus, based on the totality of the providence inquiry,
we are not confident the exchange with appellant established a personal
understanding of how he believed his belief SPC SL was consenting was
unreasonable at the time of his actions. Medina, 72 M.J. at 149. We find a
substantial basis in law and fact to question appellant’s plea to the two
specifications of assault consummated by battery and we conclude appellant’s plea
of guilty to the Specification of Charge I and the Specification of The Additional
Charge were improvident.

                                           5
SINGLETON—ARMY 20150099

                                   CONCLUSION

     The finding of guilty to the Specification of Charge I and the Specification of
The Additional Charge are set aside. We AFFIRM the remaining findings of guilty.

       In determining whether we can reassess the sentence, we apply several
nonexhaustive factors provided by our superior count in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations omitted).
Applying these factors to this case, we are confident that reassessment is
appropriate. With regard to the penalty landscape, the maximum punishment is
reduced from four to three years. The pretrial agreement capped confinement to nine
months. Second, appellant was tried by a military judge and we have experience
dealing with similar cases. Without the assault specifications, appellant remains
convicted of violating a lawful general regulation by having an inappropriate
relationship with SPC SL and maltreating SPC KH while she was in a very
vulnerable state and he was entrusted to help her. Given the gravamen of the
remaining offenses, we are confident a military judge would have adjudged at least a
nine month sentence in this case.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence approved by the convening authority. We find
this reassessed sentence is not only purged of any error but is also appropriate. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decision, are ordered restored. See
Articles 58b(c) & 75(a), UCMJ.

      Judge HERRING and Judge PENLAND concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




                                          6
