            UNITED STATES NAVY-MARINE CORPS
               COURT OF CRIMINAL APPEALS
                    WASHINGTON, D.C.

                               Before
          F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                     Appellate Military Judges

                   UNITED STATES OF AMERICA

                               v.

                     JACOB L. PEASE
INFORMATION SYSTEMS TECHNICIAN SECOND CLASS (E-5), U.S. NAVY

                       NMCCA 201400165
                   GENERAL COURT-MARTIAL

Sentence Adjudged: 13 December 2013.
Military Judge: CAPT J.K. Waits, JAGC, USN.
Convening Authority: Commander, Navy Region Europe, Africa,
Southwest Asia, Naples, Italy.
Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC,
USN.
For Appellant: Eric Montalvo, Esq., Civilian Defense
Counsel; Lt Carrie E. Theis, JAGC, USN.
For Appellee: LT Amy L. Freyermuth, JAGC, USN; Capt Matthew
M. Harris, USMC.

                          14 July 2015

    ---------------------------------------------------
               PUBLISHED OPINION OF THE COURT
    ---------------------------------------------------

BRUBAKER, Senior Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of two specifications of fraternization in violation of a
lawful general order, three specifications of sexual assault,
and one specification of abusive sexual contact, in violation of
Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 920. The members sentenced the appellant to six
years’ confinement and a dishonorable discharge.            The convening
authority approved the sentence as adjudged.

      The appellant now raises five assignments of error (AOE):

      1. The military judge improperly applied Military
      Rule of Evidence 413 to charged misconduct;

      2. The evidence is legally and factually
      insufficient;

      3. The military judge erred in failing to give a
      requested instruction;

      4.   Article 120 is unconstitutionally vague; and

      5. The military judge abused his discretion in
      admitting expert testimony.

     After carefully considering the record of trial and the
pleadings and oral arguments of the parties, we find the sexual
assault and sexual contact convictions factually insufficient.
Arts. 59(a) and 66(c), UCMJ. Having considered the appellant’s
assertion that the fraternization convictions were legally and
factually insufficient, we find they are legally and factually
sufficient and affirm them. United States v. Clifton, 35 M.J.
79, 81-82 (C.M.A. 1992). The remaining AOEs are mooted by our
decision.

                            Factual Background

     At all relevant times, the appellant, Information Systems
Technician Seaman (ITSN) S.K., 1 and Information Systems
Technician Second Class (IT2) B.S. were stationed in the radio
division of the communications department aboard the USS MOUNT
WHITNEY (LCC 20), homeported in Gaeta, Italy. The appellant was
a work center supervisor within the division and, as such, had
task-related assignment and supervisory authority over ITSN S.K.
and IT2 B.S. 2 ITSN S.K. and IT2 B.S. alleged that, in separate


1
   By the time of trial, ITSN S.K. had been promoted; however, for simplicity,
we shall refer to her by her rank at the time of the allegation.
2
   According to ITSN S.K., the appellant was just below the division lead
petty officer and as such “[r]an the shop,” Record at 470, including reading
the plan of the day, taking daily muster, and being in charge of other daily
activities within the work center.
                                      2
incidents, the appellant sexually assaulted them.            We address
each incident in turn.

ITSN S.K.

     On 6 December 2012, ITSN S.K., who had only recently
reported aboard the MOUNT WHITNEY, went out in town with some
shipmates. Although she was neither able to recall the type or
quantity of alcohol she consumed, nor how much or when she ate
that day, she did remember that they started at a bar called
“The Dutch.” ITSN S.K. reported she began feeling “tipsy” 3 while
at “The Dutch.” The group then went to another bar called
“Anna’s.” On the way, ITSN S.K. encountered the ship’s shore
patrol consisting of Chief Warrant Officer 3 (CWO3) G.B.——who
happened to be the division officer for the appellant and the
two complainants——and Information Systems Technician First Class
(IT1) J.V. According to both CWO3 G.B. and ITSN S.K., the
former issued a generic warning to the effect to behave
themselves and that he did not want to see ITSN S.K. “out all
night.” 4

     Once at “Anna’s,” ITSN S.K. drank beer and shots of hard
liquor and began to feel “drunk, blurry, starting to get --
everything started to get hazy.” 5 She continued to walk back and
forth between “Anna’s” and a third bar, “Monique’s,” located a
few storefronts away. Sometime later, ITSN S.K. had a second
encounter with shore patrol, and at this point it is
uncontroverted she was ordered back to the ship.

     CWO3 G.B. testified that while on shore patrol, he would
make “conservative calls,” 6 erring on the side of caution
regarding when to direct Sailors to return to the ship——
particularly for Sailors within his own division. On the
evening in question, he directed ITSN S.K. to return to the ship
because “when I looked at her, I could tell that she had been
drinking pretty heavily . . . . I’m not an expert by any means,
but I mean I can tell, based on my experience, when they are
getting to that point, and I thought that [ITSN S.K.] was


3
    Record at 475.
4
   Id. at 479. IT1 J.V., however, recalled that during this encounter, ITSN
S.K. was “stumbling,” and that CWO3 G.B. ordered her back to the ship at that
point, an order ITSN S.K. did not obey. Id. at 437.
5
    Id. at 479.
6
    Id. at 905-06.
                                      3
getting to that point.” 7 He reported, however, that she was
aware of her surroundings, able to engage in conversation, and
able to walk without falling. IT1 J.V. corroborated this second
encounter with shore patrol, but recalled ITSN S.K. appeared
even more intoxicated than during the first, noting that she was
leaning on another female for support because she was “wobbling
and using [her] to stand up.” 8

     According to CWO3 G.B., although he told ITSN S.K. to
return to the ship, he ran into her again later that evening at
“Anna’s.” He asked why she had not returned to the ship, and
she replied she was looking for her pocketbook, which she left
at “Monique’s.” CWO3 G.B. then escorted her to “Monique’s” to
retrieve the purse. At this point, she recalled “swaying and
trying to concentrate,” 9 but CWO3 G.B. indicated she was aware of
her surroundings and able to walk and talk without difficulty.

     CWO3 G.B. testified that as they left “Monique’s” they
encountered the appellant, whom CWO3 G.B. directed to escort
ITSN S.K. back to the ship. 10 IT1 J.V., in a slightly different
recollection, stated he observed ITSN S.K. speaking to the
appellant at the bar for approximately five minutes and the
appellant thereafter volunteered to walk ITSN S.K. back to the
ship. 11 The only other witness to testify to the level of ITSN
S.K.’s intoxication that evening stated she interacted with ITSN
S.K. briefly throughout the night and she was not “fall-down
drunk.” 12

     CWO3 G.B. and IT1 J.V. decided to walk back to the ship
themselves and followed ITSN S.K. and the appellant. They
observed ITSN S.K. able to walk on her own without falling or
stumbling. They witnessed her navigate the gate, negotiate the
ladder well, request and obtain permission to come aboard, and
scan her identification without any issue. At this point, CWO3
G.B. and IT1 J.V. parted from ITSN S.K. and the appellant.



7
     Id. at 909.
8
     Id. at 441.
9
     Id. at 480.
10
     Id. at 911.
11
     Id. at 442-43.
12
     Id. at 669.
                                4
     ITSN S.K. and the appellant proceeded from the quarterdeck
to the smoke deck. ITSN S.K. testified she only remembered
flashes of the rest of the evening. She recalled being on the
smoke deck smoking a cigarette, telling the appellant she
thought “he was cute” and that they kissed. 13 The next thing
ITSN S.K. remembered was being “in the JOC 14 having sex.” 15 ITSN
S.K. recalled that she was lying back on a table and holding her
weight up by propping her elbows on the table. The appellant
was standing in front of her while they engaged in vaginal
intercourse. She testified at trial——although she had not
reported this in previous statements or testimony——that
afterward, “he smacked my face and kept hold of it and like
focused my attention on him and said, ‘Don’t tell –- don’t ever
tell anyone.’” 16 Her next memory was waking up in the morning in
her rack in berthing.

     Once awake, ITSN S.K. couldn’t find her identification card
or purse, but noted a condom wrapper in her clothes. She “could
tell that I’d had sex, and I just remember knowing it had
happened . . . .” 17 She approached Operations Specialist Second
Class (OS2) T.B., a social acquaintance and officer of the deck
that morning, to ask how she could report her lost items.
According to OS2 T.B., ITSN S.K. indicated she had been “messing
around or fooling around” 18 with someone in the JOC the previous
night. She thought the purse and identification might be there,
but did not know the combination and said it would be
embarrassing to go ask the person she was with to let her back
into the JOC. To him, she was not flustered and appeared happy,
normal, and sober.

     ITSN S.K. eventually found her identification card and met
up with her shipmates to attend a unit-sponsored event. A
friend, Information Systems Technician Third Class (IT3) D.F.,
reported ITSN S.K. was late but seemed fine, coherent, “happy
and her normal self.” 19 He also testified that ITSN S.K. told

13
     Id. at 482-83.
14
     The Joint Operations Center is frequently referred to as the JOC.
15
     Record at 483.
16
     Id. at 486.
17
     Record at 488.
18
     Id. at 1004.
19
     Id. at 1018.
                                        5
him in a normal demeanor that she had sex with the appellant the
night before. However, in cross-examination, IT3 D.F. conceded
that she also said, “What’s wrong with me?” and “Why did I do
that?” 20 A few days later, ITSN S.K. again told IT3 D.F. that
she had sex with the appellant and thought he was cute.

     ITSN S.K. did not report she had been assaulted until 26
January 2013.

IT2 B.S.

     IT2 B.S. reported to USS MOUNT WHITNEY in early January
2013 and was assigned to the radio division in the
communications department. The appellant was her work center
supervisor. She also worked with and befriended ITSN S.K. IT2
B.S. was engaged to another Sailor stationed in Norfolk,
Virginia.

     On 25 January 2013, IT2 B.S. went out in town with some
shipmates. After stopping at the apartment of a friend, IT2
S.B., the group went to “The Dutch” for dinner. There, IT2 B.S.
ate dinner and consumed two “shooters,” which she described as
“two or three more sizes than a shot.” 21 The group next moved to
a bar which was a long walk from “The Dutch,” where IT2 B.S.
consumed one Red Bull and vodka. They then went to another pub
where IT2 B.S. consumed another Red Bull and vodka. Next, IT2
B.S. and IT2 S.B. returned to IT2 S.B.’s apartment to change
clothes before they rejoined their friends and then walked to
“Anna’s.” IT2 B.S. stated that when she arrived at “Anna’s” she
felt “tipsy.” 22 She does not remember if she drank any more
alcohol while she was there, but did recall seeing the appellant
there and conversing with him.

     IT2 S.B. testified that while IT2 B.S. was at “Anna’s” she
was “feeling pretty good,” 23 but wasn’t slurring her words or
stumbling. He did not believe she was drunk and when she left
the bar, she was fine and was not falling or stumbling. At that
point, IT2 S.B. left the group and went home. A different
witness out that night reported seeing IT2 B.S. with her arm
interlocked with the appellant while at “Anna’s.”

20
     Id. at 1024-25.
21
     Id. at 581.
22
     Id. at 475.
23
     Id. at 976.
                                6
     Next, IT2 B.S. and her shipmates went to “Monique’s.” The
appellant did not go to “Monique’s,” so he and IT2 B.S. parted
ways. IT2 B.S. remembered having at least one shot and one
drink at “Monique’s.” She reported being very drunk and
starting to experience memory loss. She recalled dancing with
another shipmate outside of “Monique’s,” and then leaning
against the wall and smoking a cigarette.

     IT3 H.W. testified she saw IT2 B.S. outside of “Monique’s”
trying to light a cigarette backwards “and that’s when I noticed
that she was kind of drunk.” 24 IT3 H.W. brought IT2 B.S. a
bottle of water, which she drank. Asked what IT2 B.S.’s
demeanor was like at that point, IT3 H.W. responded, “I mean she
seemed a little drunk, but overall she seemed fine,
functional.” 25

     While IT2 B.S. and IT3 H.W. were outside of “Monique’s,”
CWO3 G.B., again acting as shore patrol, arrived at the bar and
witnessed IT2 B.S. leaning up against the wall drinking a bottle
of water. While inside dealing with an unrelated matter,
another Sailor told him that IT2 B.S. “had been drinking pretty
heavily.” 26 After finishing with the other matter, CWO3 G.B.
told IT2 B.S. that she needed to return to the ship and directed
IT3 H.W. to accompany her back. He reported that IT2 B.S. was
able to speak with him, walk on her own, and was not stumbling.

     The other member of shore patrol that evening also saw IT2
B.S. leaning against the wall and was present when CWO3 G.B.
ordered her back to the ship. He described her as compliant and
quiet and testified that “[w]hen she walked away, I didn’t see
any stagger in the walk or anything of that nature. She may ---
and so I’m not exactly sure what her level of drunkenness was.” 27

     As IT3 H.W. was walking IT2 B.S. back to the ship, they
encountered the appellant. IT3 H.W. wanted to return to the bar
with her friends, so the appellant volunteered to accompany IT2
B.S. back to the ship. No other witnesses observed IT2 B.S. for
the rest of the evening.



24
     Id. at 660-61.
25
     Id. at 662-63.
26
     Id. at 915.
27
     Id. at 573.


                                7
     IT2 B.S. recalled that while walking back to the ship with
the appellant, she told him she wanted to stay out and party. 28
She recalled having her arm interlocked with the appellant’s and
recognizing a café they walked past. She only remembered
fragments of the evening thereafter.

     The next thing IT2 B.S. recalled is the appellant engaging
in anal sex with her. She felt pain and told him to stop, which
he did. B.S. then became sick, vomiting on the bed, and got up
to clean herself off and go to the bathroom. As she did this,
she recognized the apartment she was in as one she had visited
prior to that evening. She went to the bathroom and turned on
the shower to rinse herself off. Her next memory was being on
the floor of the bathroom naked with the appellant banging on
the hatch. She recalled feeling very cold and sick and returned
to the bed to get under the covers. She recalled that at some
point she got out of bed and went to the kitchen to get water.

     IT2 B.S. reported various fragmented memories following the
shower. She remembered engaging in vaginal sexual intercourse
and sexual conduct in various positions, including being on top
of the appellant, lying on her side, and being on her hands and
knees with the appellant entering her from behind. She reported
at one point while she was on top, the appellant bit her nipple.
This caused her pain, so she told him to stop, which he did.
She also recalled performing fellatio on the appellant while he
lay on his back.

     IT2 B.S. admitted she enjoyed certain portions of the sex,
stating, “I recall telling [the Naval Criminal Investigative
Service] about the doggie style and it was vaginal and I --- I
do recall telling them that I enjoyed it and that I --- I did
for the moment that I --- I woke up or, you know, had the next
memory I did enjoy it for that.” 29 After being asked, “Does that
mean it felt good?” she responded, “That night, yes, for those
moments, yes, after the next day, no.” 30

     IT2 B.S. recalled the appellant directing her not to tell
anyone what had happened, specifically mentioning ITSN S.K., and
finally recalled falling asleep with the appellant “caressing


28
     Id. at 631.
29
     Id. at 650.
30
     Id.


                                8
her arm.” 31 She had no indication of the times that all these
events happened.

     The next morning, IT2 B.S. was awakened by another petty
officer from the ship sent to retrieve her. The appellant had
already departed. She got dressed, asked if “she had any
hickies,” 32 and was concerned she was going to be in trouble for
not returning to the ship the previous evening.

     Upon returning to the ship, her chief petty officer and a
lieutenant verbally counseled IT2 B.S. regarding her alcohol use
and making a good impression on the ship as a newly reported
Second Class Petty Officer. Afterwards, IT2 B.S. showered and
went to sleep.

     IT2 B.S. was awakened in the afternoon by ITSN S.K., who
had heard she had not returned to the ship the previous evening.
Eventually, IT2 B.S. told ITSN S.K. about what had transpired
between her and the appellant. ITSN S.K. then relayed to IT2
B.S. what had happened between herself and the appellant the
previous month. They decided IT2 B.S. should report she had
been assaulted. After IT2 B.S. finished her report to a victim
advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged
assault as well.

Expert Testimony

     Each party sponsored an expert witness to discuss levels of
intoxication and the effects of alcohol. Dr. Bruins, a forensic
toxicologist from the Air Force Drug Testing Laboratory,
testified for the Government in broad terms about how the human
body processes alcohol, the meaning of blood alcohol content
(BAC), and, using what is known as the Dubowski chart, the
stages of alcohol influence given ranges of BAC. Dr. Bruins did
not, however, feel comfortable calculating a BAC for either
complainant. Regarding ITSN S.K., he stated “there was just
very little information on the type -- you have to know the type
of alcohol, whether it’s beer, wine or distilled spirits because
they vary in alcohol content. You have to know the individual’s
body weight. You have to know their drinking history and more
importantly, you have to know a timeline and so with the



31
     Id. at 649-50.
32
     Id. at 603.


                                9
situation with [ITSN S.K.], I – that information was not
available.” 33

     Regarding IT2 B.S., Dr. Bruins testified “there was
information available, there was the ability to piece part of
this together, but there were several missing gaps.” 34 These
gaps again included type and amount of alcohol and timeline.

     Dr. Bruins testified that BAC levels continue to rise for
30 to 60 minutes after the last drink is consumed. He also
discussed the distinction between blackout——memory loss——versus
pass out——unconsciousness. The higher a person’s BAC, the more
likely he will experience blackout. A person experiencing
blackout could, however, still be functioning and responsive to
others; their brain just is not recording memories. Prompted by
the trial counsel, Dr. Bruins opined that “an ordinary, normal
person can observe these effects and have the suggestion or
opinion that something is going on with that individual and that
they may be under the influence of something.” 35

     The defense called Dr. Fromme, a professor of clinical
psychology at the University of Texas, Austin. Dr. Fromme
conducts research and teaches classes on the effects of alcohol
and possesses significant credentials in the area of alcohol
research. Her professional focus is “on alcohol use and the
effects of alcohol intoxication with specific focus on alcohol
related blackouts, the effects of alcohol intoxication on
behavior such as sexual risk taking.” 36

     Dr. Fromme testified that “[a]t higher doses of alcohol as
people become progressively more intoxicated, they might begin
to act in reckless, aggressive or even sexually provocative
ways.” 37 Dr. Fromme explained another effect of alcohol that she
referred to as “alcohol myopia” — a focus on immediate effects
and disregard for long-term consequences. Dr. Fromme also
addressed alcohol-related blackout, stating that during
blackout, an individual:


33
     Id. at 735.
34
     Id.
35
     Id. at 748.
36
     Id. at 1082.
37
     Id. at 1085.


                               10
       is still fully conscious. They’re moving around,
       acting, engaging, talking, dancing, driving, engaging
       in all kinds of behavior, but because of alcohol’s
       inhibition of the transfer of information from short-
       term memory to long-term memory, they simply will be
       unable to remember those decisions or actions they
       made while in the blackout. 38

     Pass-out, on the other hand, typically occurs at BACs of
0.30 or higher and occurs when the level of alcohol reaches such
a high level “that the part of the brain that controls
consciousness has literally shut down, so those individuals have
lost consciousness” 39 and would not easily be roused.

     Dr. Fromme stated that a person in a black-out state can
still be able to engage in voluntary behavior and thought
processes. “They might make decisions, for example, to drive
home from a bar, or to climb onto the roof of a building, or to
purchase an airline ticket online, all activities which require
complex cognitive abilities, but the individual might not
remember the next day and might, in fact, might regret it.” 40

                              Analysis

     Under Article 66(c), UCMJ, we conduct a de novo review of
factual sufficiency of each case before us. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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,” we are ourselves convinced
of the accused's guilt beyond a reasonable doubt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “Such a review
involves a fresh, impartial look at the evidence, giving no
deference to the decision of the trial court on factual
sufficiency beyond the admonition in Article 66(c), UCMJ, to
take into account the fact that the trial court saw and heard
the witnesses.” Washington, 57 M.J. at 399. Proof beyond a
reasonable doubt does not mean, however, that the evidence must
be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N.M.Ct.Crim.App. 2001).


38
     Id. at 1087.
39
     Id. at 1087-88.
40
     Id. at 1094.


                                 11
      Common elements for both sexual assault and abusive sexual
contact as charged in this case are that the complainants were,
at the time of the sexual conduct in question, incapable of
consenting to the conduct due to impairment by an intoxicant and
that the appellant knew or reasonably should have known this.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶¶ 45b
and 45d. After careful deliberation, and accounting for the
fact that we did not personally observe the witnesses, we are
not ourselves convinced that the Government proved these
elements beyond a reasonable doubt.

     Our conclusion has nothing to do with the sincerity or
credibility of either complainant. It turns, instead, on the
high burden the Government carries in a criminal case and an
issue the record shows the members struggled with: how impaired
does a person have to be before they are “incapable of
consenting”?

     The short answer is our interpretation of the law applied
to our assessment of the facts in this case leaves us with
reasonable doubt that the complainants were legally “incapable
of consenting” as well as reasonable doubt that the appellant
knew or reasonably should have known they were incapable of
consenting.

     There is a dearth of case law interpreting the phrase
“incapable of consenting” and the breadth of the current Article
120. But, in a search for meaning, we need look no further than
the words of the statute itself. See United States v. Ron Pair
Enters., 489 U.S. 235, 240-41 (1989) (“as long as the statutory
scheme is coherent and consistent, there generally is no need
for a court to inquire beyond the plain language of the
statute”).

     After enumerating that it is a crime to commit sexual acts
or contact upon a person incapable of consenting, Article 120
defines “consent” as “a freely given agreement to the conduct at
issue by a competent person” and goes on to state that a
“sleeping, unconscious, or incompetent person cannot consent.”
Art. 120(g)(8), UCMJ. Reading these provisions together, to
prove a violation of Article 120(b) or (d), the Government must
prove that a listed condition rendered the complainant incapable
of entering a freely given agreement. Here, the terms
“competent” and “incompetent” in the definitions section merely
refer back to the punitive language regarding those incapable of
consenting; it adds no further punitive exposure. Thus, in this
context, a “competent” person is simply a person who possesses

                                 12
the physical and mental ability to consent. An “incompetent”
person is a person who lacks either the mental or physical
ability to consent due to a cause enumerated in the statute. To
be able to freely give an agreement, a person must first possess
the cognitive ability to appreciate the nature of the conduct in
question, then possess the mental and physical ability to make
and to communicate a decision regarding that conduct to the
other person.

     Applying that interpretation to this case, we are not
convinced beyond a reasonable doubt that the complainants were
incapable of consenting——that is, that they lacked 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. Additionally, even if
we were to conclude that they were “incapable of consenting,” we
conclude that under the facts of this case, the Government did
not prove beyond a reasonable doubt that the appellant knew or
reasonably should have known of this condition. We base this on
the totality of the record under the unique circumstances of
this case, but we address some of the specific issues that cause
us doubt below.

     As the Government’s own expert highlighted, the
complainants themselves were only able to provide limited
insight into what, how much, and over what period of time they
consumed alcohol. There were no blood alcohol tests in evidence
and witnesses who observed the complainants largely minimized
their level of intoxication. The Government was often forced to
attempt to impeach their own witnesses——somewhat unpersuasively
in our opinion——on supposedly contradictory statements they had
made on this point.

     Regarding ITSN S.K., two impartial witnesses observed her
walk back to the ship with the appellant without any apparent
difficulty, navigate the gate and ladder well, request
permission to come aboard, and scan her identification card.
While she was intoxicated enough that CWO3 G.B. singled her out
and ordered her back to the ship, this, standing alone, does not
prove she was sufficiently impaired that she was incapable of
consenting to sexual activity. Further, ITSN S.K. herself
conceded in cross-examination that she may have said “yes” to
the sexual intercourse, and just could not remember doing so.
We think this more than a mere speculative possibility here.
Under these circumstances, her fragmentary memory of kissing the
appellant and telling him he was cute, then of being propped up
supporting her own weight on her elbows having sexual

                               13
intercourse with him does not persuade us beyond a reasonable
doubt that somewhere in between, she had become manifestly
unaware of what was happening or unable to make or to
communicate decisions.

     Similar concerns apply to IT2 B.S. She was able to recall
making the decision to “stay out and party” despite being aware
of shore patrol’s order to return to the ship. 41 She conceded
during cross-examination that she knew she had been ordered
back, was able to formulate the thought that she wanted to stay
out instead, and was able to decide and to communicate that she
wanted to stay out. As with ITSN S.K., she had only fragmentary
memory from there, but she remembered that when certain
activities were painful or unpleasant, she was able to determine
that she did not want that activity to continue and to
articulate that to the appellant, who stopped. She further
candidly related active participation in and even enjoying
portions of the sexual activity.

     In addition to not supporting the conclusion that ITSN S.W.
and IT2 B.S. were “incapable of consenting,” we view this as
evidence supporting the conclusion that the appellant reasonably
may have believed that they were willing partners in sexual
activity. Under these and all circumstances in the record, we
are not convinced beyond a reasonable doubt that the appellant
knew or reasonably should have known that she was incapable of
consenting.

                           Conclusion

     The findings of guilty to Charge I and its Specifications 1
through 3 and 5 are set aside and Charge I and its
Specifications 1 through 3 and 5 are dismissed. The findings of
guilty of Charge II and its specifications (fraternization) are
affirmed. Because this represents “a ‘dramatic change’ in the
penalty landscape” and we cannot reliably determine what
sentence the members would have imposed for the remaining
fraternization offenses, United States v. Riley, 58 M.J. 305,
312 (C.A.A.F. 2003), we also set aside the sentence. The record
is returned to the Judge Advocate General of the Navy for remand




41
     Id. at 631.
                               14
to an appropriate convening authority with a rehearing on
sentence authorized. Art. 66(d), UCMJ.

     Chief Judge MITCHELL and Judge HOLIFIELD concur.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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