          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                    Airman ROBERT A. JONES
                                      United States Air Force

                                               ACM 38434

                                             13 March 2015

         Sentence adjudged 10 May 2013 by GCM convened at Aviano Air Base,
         Italy. Military Judge: Dawn R. Eflein.

         Approved Sentence: Dishonorable discharge, confinement for 3 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant:                 Major Anthony D. Ortiz and
         Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Robert Ramírez; Major Jason S. Osborne; Captain Richard J.
         Schrider; and Gerald R. Bruce, Esquire.

                                                  Before

                               HECKER, MITCHELL, and TELLER
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.




TELLER, J., delivered the opinion of the Court, in which MITCHELL, S.J., joined.
HECKER, S.J., filed a separate opinion concurring in part and dissenting in part.


     Appellant was convicted, contrary to his pleas, by a panel of officer and enlisted
members, of sleeping on post, breaching the peace, aggravated sexual assault, indecent
conduct, assault consummated by a battery, and drunk and disorderly conduct in violation
of Articles 113, 116, 120, 128 and 134, UCMJ; 10 U.S.C. §§ 913, 916, 920, 928, 934. 1
The court sentenced him to a dishonorable discharge, three years of confinement,
forfeiture of all pay and allowances, and reduction to E-1. The sentence was approved, as
adjudged.


       The appellant argues (1) the preferral of charges was defective, (2) the evidence
related to the aggravated sexual assault specification was factually insufficient, (3) the
military judge erred by allowing improper character evidence argument, and (4) the
appellant was deprived of his right to a fair trial due to the military and political
environment regarding sexual assault allegations.2 This court specified an additional
issue: whether the military judge’s failure to instruct the members on the definition of
“substantially incapable” constituted plain error.


       We find the evidence to support the aggravated sexual assault specification was
factually and legally insufficient, and set aside that finding. We affirm the lesser
included offense of wrongful sexual contact and the remaining findings, and reassess the
sentence.


                                                 Background


       The charges in this case arise from alleged misconduct during the appellant’s first
two years in the Air Force. While still in technical training, the appellant is alleged to
have had sexual intercourse with a fellow trainee while she was substantially incapable of
declining participation in the act. Because that act occurred in a hotel room occupied by
several other trainees, it also gave rise to a specification of indecent conduct.
The episode did not prevent the appellant from completing training, and the appellant
reported to Aviano Air Base (AB), Italy, as his first duty station. While there, the
appellant engaged in a course of misconduct ranging from sleeping on post to assaulting a




1
  The appellant was acquitted of communicating a threat and wrongful sexual contact. The convening authority
withdrew and dismissed Charge I and its Specification (resisting apprehension) after the military judge suppressed
the evidence that supported Charge I. The military judge dismissed Additional Charge II and its Specification
(conveying a profane message to another airman) after finding the appellant’s speech was protected under the
First Amendment.
2
  Issues (3) and (4) are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                        2                                            ACM 38434
fellow airman suspected of stealing food from dormitory rooms. The assignments of
error all pertain to the Article 120, UCMJ specifications.3


       The evidence relating to the specifications of sexual assault and indecent conduct
is comprised of several conflicting accounts. Pursuant to our authority under Article 66,
UCMJ, 10 U.S.C. § 866(c), we find the following as fact. On 11 November 2011, the
appellant and several male classmates obtained a room at an off-base hotel in San
Antonio, Texas, where they were attending technical training. After having several
mixed drinks, the appellant and his classmates went to a nightclub, where he met Airman
First Class (A1C) CH and another female airman. As A1C CH was leaving the club, she
saw the appellant and a male classmate preparing to return to the hotel in a taxi. She and
her companion were invited to join the appellant, and they accepted.


       After arriving at the hotel, the appellant and A1C CH continued to talk. Despite
hints from A1C CH that she was not romantically interested in the appellant, he
continued to pursue her. At some point in the evening, A1C CH participated in a
drinking game, but retained control over her physical and mental faculties. The game
involved players naming some type of conduct, often sexual in nature, and the other
players would either take a drink or not based on whether they had ever done whatever
conduct the player described. After the drinking game, an argument between the
appellant and one of the other male occupants ensued. Either coincident to or as a result
of the argument, hotel security arrived outside the hotel room door to investigate a noise
complaint. To defuse the argument and avoid problems with hotel security, A1C CH
engaged in a “make-out kiss” with the appellant and with the other party to the argument.
She kissed each of them twice.


        As the occupants settled down into their sleeping arrangements, A1C CH chose a
space in a bed with the appellant, who she thought was asleep. The appellant started
rubbing A1C CH’s leg and waist, so she got up and moved to the other bed, despite it
being crowded. After five to ten minutes, both A1C CH and another male airman
(A1C TN) got into bed with the appellant. A1C CH began kissing A1C TN, and made a
joke related to the earlier drinking game that she had “never had a threesome.” As the
kissing progressed, A1C CH began to masturbate A1C TN. The appellant, who was now
behind A1C CH, began to lift the back of her dress. She told the appellant to stop, which
he initially did, but he soon began touching A1C CH again.

3
 The Article 120, UCMJ, 10 U.S.C. § 920, offenses were charged to have occurred on or about 12 November 2011.
All references in this opinion to Article 120, UCMJ refer to that Article in existence at the time of the charged
offense under Manual for Courts-Martial, United States, (MCM), Part IV, ¶ 45. (2008 ed.), except as specifically
noted.


                                                        3                                            ACM 38434
       At some point A1C CH rolled onto her back which placed her between the
appellant and A1C TN. Aggravated by the appellant’s continued touching, A1C CH told
them both to stop touching her. At this point, A1C TN tried to mollify her and placed his
arm over her upper torso. The appellant got on top of A1C CH with her legs under and
between his own. According to A1C CH, A1C TN’s facial expression became serious,
and he exerted enough pressure with his arm that she could not sit up. A1C CH told the
appellant she did not want to have sex with him, but he persisted. The appellant pulled
down A1C CH’s underwear and despite the awkward position, was able to insert his
penis into her vagina and soon reached orgasm.


       When the appellant rolled off A1C CH, he and A1C TN exchanged a brief
disrespectful remark before she confronted them, insisting that she did not want to have
sex. A1C TN exclaimed that A1C CH just got raped, however his motivation for making
these remarks is unclear. A1C CH got up and went to the bathroom.


       While in the bathroom A1C CH became more angry at the appellant. She came
out of the bathroom and physically confronted him, briefly placing her hands on his
throat until she was pulled off by other airmen. She eventually calmed down, but with no
way to return to base without abandoning her now drunk and sleeping female companion,
she made a bed on the floor and tried to sleep. The next day, A1C CH filed a restricted
report of the assault, which she later converted to an unrestricted report.


                                         Preferral


        The appellant argues that the Secretary of Defense’s withhold of initial disposition
authority converted the Special Court-Martial Convening Authority into a nominal
accuser under Article 1(9), UCMJ, thereby rendering his later discretionary actions
unlawful. This claim was litigated at trial and the military judge found it to be without
merit. The appellant also argues that the restrictions on disposition authority tainted the
preferral by apparent unlawful command influence (UCI). Trial defense counsel
conceded at trial that the UCI issue was preserved only to the extent this court found the
first assignment of error meritorious. Interpretation of the UCMJ and the Rules for
Courts-Martial (R.C.M.) is a matter of law that we review de novo. United States v.
Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008).


       On 20 April 2012, the Secretary of Defense withheld initial disposition authority
for certain Article 120, UCMJ offenses from all commanders who were not designated as


                                             4                                    ACM 38434
a special court-martial convening authority and serving in the grade of O-6 or above. The
Secretary cited R.C.M. 306 (Initial Disposition), 401 (Forwarding and Disposition of
Charges in General), and 601 (Referral) in his memorandum. The appellant contends
that preferral of charges, covered by R.C.M. 307, is one type of disposition covered by
the withholding memorandum.          Charges in this case subject to the withhold
memorandum were preferred by the appellant’s immediate commander, who was serving
in the grade of O-5 and did not have court-martial convening authority.


       The appellant’s argument is not supported by the facts or the law. First, it is not
clear that the Secretary of Defense, even if he had intended to, could alter the ability of
anyone subject to the UCMJ to prefer charges under Article 30, UCMJ, 10 U.S.C. § 830.
We need not reach that question, however, since the memorandum cannot be fairly
interpreted to evince such intent. The memorandum, which includes explicit references
to R.C.M. 306, 401 and 601, does not reference R.C.M. 307, which governs preferral of
charges. The appellant argues that because R.C.M. 306 enumerates preferral of charges
as one option for initial disposition, preferral should be considered part of initial
disposition decision withheld under the memorandum. We decline to give the
Secretary’s memorandum such a strained interpretation.


       We concur with the trial court that preferral of charges is distinct from initial
disposition. We find the appellant’s immediate commander, as he testified, preferred
charges on his own authority and not as an agent of the Special Court-Martial Convening
Authority. Accordingly, the Special Court-Marital Convening Authority was not a
nominal accuser, nor do we impute that status to him as a result of the Secretary’s
memorandum. Neither the preferral of charges nor the Special Court-Martial Convening
Authority’s subsequent discretionary actions constituted procedural error and the
appellant’s first assignment of error is without merit. Because the appellant’s claim of
apparent UCI rests upon the proposition that the Special Court-Martial Convening
Authority became a nominal accuser, we also dispose of that claim adversely to the
appellant.


             Constitutional Challenge to Offense of Indecent Acts under Article 120


       The appellant was charged with committing an indecent act for engaging in sexual
intercourse with A1C CH while in the same bed as A1C TN and while in close proximity
to seven other airmen who were in the same hotel room. As he did at trial, the appellant
argues that the indecent acts provision of Article 120, UCMJ that was in effect at the time
of his offense was unconstitutionally vague and overbroad, particularly as it tended to


                                             5                                   ACM 38434
infringe privacy interests protected by the Constitution, and fails to provide sufficient
notice of what conduct is prohibited.4 We review Constitutional issues de novo.
United States v. Payne, 47 M.J. 37, 42 (C.A.A.F. 1997).


         The Fifth Amendment to the Constitution requires “[n]o person shall
be . . . deprived of life, liberty, or property, without due process of law.” One component
of due process is fair notice, the idea that “criminal responsibility should not attach where
one could not reasonably understand that his contemplated conduct is proscribed.”
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (quoting Parker v. Levy,
417 U.S. 733, 757 (1974)). When a provision of the UCMJ is challenged for facial
vagueness, courts construe its literal language in the context of other authorities that place
limits upon its reach, including the Manual for Courts-Martial, federal law, state law,
military case law, military custom and usage, and military regulations. See id. If, in the
context of those authorities, the appellant is one to whom the description of criminality in
the statute clearly applies, then he lacks standing to challenge the statute for facial
vagueness. United States v. McGuinness, 35 M.J. 149, 152 (C.M.A. 1992).


        The Navy-Marine Corps Court of Criminal Appeals recently addressed this issue
in United States v. Miles, NMCCA 201300272 (N.M. Ct. Crim. App. 21 August 2014)
(unpub. op). In Miles, the court rejected a facial vagueness challenge to Article 120(k),
UCMJ, after determining that the statutory language, as informed by other sources of
authority and the facts of the case at hand provided service members of ordinary
intelligence fair notice of prohibited conduct. Although the opinion was unpublished, we
find its analysis on this point persuasive. Our prior case law, as well as that of our
superior court, has long held that lawful “sexual activity can be ‘indecent’ if committed
in public or in an ‘open and notorious’ manner, meaning it occurs under circumstances
where it is ‘reasonably likely’ to be seen by another person or where the actor knows
another person is present, even though the other person did not actually observe the act.”
United States v. Burkhart, 72 M.J. 590, 596 (A.F. Crt. Crim. App. 2013) (quoting
United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999); United States v. Sims,
57 M.J. 419, 421-22 (C.A.A.F. 2002)). In this case, the appellant engaged in sexual
activity despite the immediate presence—and likely observation—of several other
airmen. Our superior court has also recently reaffirmed that such open and notorious
activity was not plainly private and therefore did not fall within the privacy interests


4
  The pertinent provision of Article 120, UCMJ, provides that “Any person subject to this chapter who engages in
indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.” MCM, Part IV,
¶ 45.a.(k). The elements for indecent act are (1) “That the accused engaged in certain conduct” and (2) “[t]hat the
conduct was indecent conduct.” Id. at ¶ 45.b.(11). “[I]ndecent” is defined as “generally signifies that form of
immorality relating to sexual impurity that is not only grossly vulgar, obscene, and repugnant to common propriety,
but also tends to excite lust and deprave the morals with respect to sexual relations.” Id. at ¶ 45.c.(3).


                                                        6                                             ACM 38434
protected by Lawrence v. Texas, 539 U.S. 558 (2003). See United States v. Goings,
72 M.J. 202, 206 (C.A.A.F. 2013).


       The plain language of Article 120(k), UCMJ, as further defined in the Manual for
Courts-Martial and informed by case law, adequately provides service members of
ordinary intelligence “fair notice of what is prohibited.” United States v. Williams,
553 U.S. 285, 304 (2008). The appellant is not an entrapped innocent ensnared by
language he could not have ascertained applied to him. See McGuinness, 35 M.J. at 152.
Accordingly, he lacks standing to challenge the statute as facially vague.


        Fair Trial and the Military and Political Environment Related to Sexual Assault


        The appellant also argues, pursuant to United States v Grostefon,
12 M.J. 431 (C.M.A. 1982), that media coverage of events related to sexual assault in the
military and political pressure during the week of his trial made it impossible for him to
receive a fair trial. His assignment of errors refers to his clemency submission, where he
states that pretrial publicity “impacted both the trial and the sentence [he] received” and
that his period of confinement and dishonorable discharge were “a result of President
Obama’s urging.” Since there is no evidence of pretrial publicity related to the
appellant’s own case, we construe that portion of his claim as asserting that publicity
related to comments or prior actions of senior leaders either actually or apparently
influenced his trial.


        Article 37(a), UCMJ, 10 U.S.C. § 837(a) states in relevant part: “[n]o person
subject to this chapter may attempt to coerce or . . . influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the findings or sentence
in any case.” The mere appearance of unlawful command influence may be
“as devastating to the military justice system as the actual manipulation of any given
trial.” United States v. Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (citation omitted)
(internal quotation marks omitted). “Even if there was no actual unlawful command
influence, there may be a question whether the influence of command placed an
intolerable strain on public perception of the military justice system.” United States v.
Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006) (citation omitted) (internal quotation marks
omitted). “Whether the conduct of the [senior leaders] in this case created an appearance
of unlawful command influence is determined objectively.” Id. Because the focus is on
the perception of fairness as viewed through the eyes of a reasonable member of the
public, “the appearance of unlawful command influence will exist where an objective,




                                              7                                    ACM 38434
disinterested observer, fully informed of all the facts and circumstances, would harbor a
significant doubt about the fairness of the proceeding.” Id.


        The burden of raising the issue of unlawful command influence rests with trial
defense counsel. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citation
omitted). The defense must: (1) “show facts which, if true, constitute unlawful
command influence,” and (2) show “the alleged unlawful command influence has a
logical connection to the court-martial, in terms of its potential to cause unfairness in the
proceedings.” Id. (citation omitted). To meet the threshold for raising this issue, trial
defense counsel is required to present “some evidence” of unlawful command influence.
Id. If the defense meets that burden to raise the issue, the burden shifts to the
Government, who must prove beyond a reasonable doubt: (1) the predicate facts do not
exist; or (2) the facts do not constitute unlawful command influence; or (3) the unlawful
command influence did not affect the findings and sentence. Id. at 151.


        There were several high-profile events related to sexual assault in the military in
the weeks leading up to the appellant's trial. The Third Air Force Commander had
recently disapproved a conviction in United States v. Wilkerson, a previous sexual assault
case at Aviano AB. That decision sparked substantial public and Congressional interest.
Shortly prior to trial, the officer in charge of the Air Force Sexual Assault Prevention and
Response Office had been arrested on suspicion of groping a woman. The Department of
Defense had recently released statistics indicating an increase in sexual assault reports
since the previous year. There were also statements from the President and Secretary of
Defense expressing their concern about sexual assault, and arguably advocating specific
results in prosecutions for sexual assault offenses.


       In light of this media coverage, the military judge and both counsel conducted
extensive voir dire of the potential members. Voir dire covered both the Wilkerson case
specifically as well as news reports covering sexual assault in the military. The trial
defense counsel, having explored the topic with each of the potential members, did not
assert any challenges for cause. The defense also elected not to use its peremptory
challenge. We find nothing in the record generally, nor the voir dire specifically, that
suggests a logical connection between the comments complained of and this case. On the
contrary, while the members had a general awareness of the comments by political
leaders and varying degrees of knowledge about the Wilkerson case, they all agreed they
would not be influenced by any of those matters in performing their court-martial duties.




                                              8                                    ACM 38434
        Under these circumstances, we find no basis to conclude that the appellant was
subject to any actual prejudice due to the attention on military sexual assault cases
generally or his case in particular. See United States v. Simpson, 58 M.J. 368, 373
(C.A.A.F. 2003). Nor do we find that the environment created apparent unlawful
command influence. An objective, disinterested, reasonable member of the public, fully
informed of all the facts and circumstances, would not harbor a significant doubt about
the fairness of the appellant's court-martial proceeding. See Lewis, 63 M.J. at 415.


              Factual and Legal Sufficiency of Aggravated Sexual Assault Conviction


       The appellant contends the evidence was factually insufficient to support his
conviction of aggravated sexual assault.5 We also review that conviction for legal
sufficiency as part of our Article 66, UCMJ review.


        We review issues of legal and factual sufficiency de novo. Article 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. Humpherys, 57 M.J. 83, 94
(C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).
The test for factual sufficiency is whether, after weighing the evidence and making
allowances for not having observed the witnesses, we ourselves are convinced of the
appellant’s guilt beyond a reasonable doubt. United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000) (citing Turner, 25 M.J. at 325). Applying these standards to the record
in this case, we find the evidence neither legally nor factually sufficient to support the
specification as charged.


       The difficulty for the government in this case arises because the government
charged the appellant under a statutory provision dealing with A1C CH’s lack of ability
to decline participation when the only disagreement appears to be whether A1C CH did
decline, not whether she could decline.


      On appeal, the government continues to assert that its only theory of the case was
that A1C TN held A1C CH’s shoulders down while the appellant raped her and that
A1C TN’s action therefore made A1C CH “physically unable to decline participation” in

5
  The appellant was acquitted of wrongfully engaging in sexual contact with Airman First Class (A1C) CH by
touching her breast with his hand without her permission.


                                                    9                                         ACM 38434
the sexual act. Under that theory and under the facts adduced at trial, a more appropriate
charge would have been aggravated sexual assault by causing bodily harm to A1C CH,
pursuant to Article 120(c)(1)(B), UCMJ.6 Instead, however, the appellant was charged
with aggravated sexual assault under Article 120(c)(2)(B), UCMJ for committing a
sexual act upon A1C CH while she was “substantially incapable of . . . declining
participation in the act.”


       The offense of aggravated sexual assault occurs when a military member “engages
in a sexual act with another person of any age if that person is substantially incapacitated
or substantially incapable of (A) appraising the nature of the sexual act; (B) declining
participation in the sexual act; or (C) communicating unwillingness to engage in the
sexual act.” Article 120(c)(2), UCMJ. The elements of the offense, as charged here, are:


               1) that at or near San Antonio, Texas, on or about 12 November
        2011, the accused engaged in a sexual act, to wit: penetration with his
        penis of the vulva of A1C CH; and


               2) that the accused did so when A1C CH was substantially incapable
        of declining participation in the sexual act.


Manual for Courts-Martial (MCM), Part IV, ¶ 45.a.(c)(2)(B) (2008 ed.).


       As discussed below, under the facts of this case and based on the specific theory of
culpability selected by the government, we find the evidence insufficient to support the
allegation that this sexual activity took place while A1C CH was “substantially incapable
of declining participation” in the activity. We find she was capable of declining
participation, and repeatedly did so. The appellant’s disregard of her protests and
subsequent sexual activity with her is, however, actionable as the offense of wrongful
sexual contact.




6
  In this context, “‘bodily harm’ means any offensive touching of another, however slight.” Article 120(t)(8),
UCMJ; see also United States v. Vidal, 23 M.J. 319, 324-25 (C.M.A. 1987) (holding that a person who jointly acts
to overcome a woman’s resistance to intercourse may convicted of rape “even though [the government] cannot
prove beyond a reasonable doubt whether he personally had intercourse or only helped someone else have
intercourse with the unwilling victim.”)


                                                      10                                            ACM 38434
       Our analysis depends on what is meant by being “substantially incapable of
declining participation in [a] sexual act.” The UCMJ does not provide a definition of this
phrase. Webster’s dictionary defines decline, in the context used here, as “to withhold
consent.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 299 (10th ed. 1999). The
Military Judges’ Benchbook (Benchbook) defines “substantially incapable” and
“substantially incapacitated” identically as:


           that level of mental impairment due to consumption of alcohol, drugs, or
           similar substance; while asleep or unconscious; or for other reasons; which
           rendered the alleged victim unable to appraise the nature of the sexual
           conduct at issue, unable to physically communicate unwillingness to
           engage in the sexual conduct at issue, or otherwise unable to make or
           communicate competent decisions.


Department of the Army Pamphlet (D.A. Pam.) 27-9, Military Judges’ Benchbook, ¶ 3-
45-5.d. (1 January 2010).


The military judge did not provide this instruction to the panel. 7 Instead, using language
from Article 120(t)(14), UCMJ, in the course of instructing the panel on consent, the
military judge advised them: “A person cannot consent to sexual activity if that person is
substantially incapable of physically declining participation in the sexual conduct at
issue.”


       As our superior court has held, the existence of actual consent is directly relevant
to offenses brought under Article 120(c), UCMJ. “If an accused proves that the victim
consented, he has necessarily proven that the victim had the capacity to consent, which
logically results in the accused having disproven an element of the offense of aggravated
sexual assault—that the victim was substantially incapacitated.” United States v.
Prather, 69 M.J. 338, 343 (C.A.A.F. 2011). The Prather court also observed that “there
may exist an abstract distinction between ‘substantially incapacitated’ and ‘substantially
incapable,’” but found no meaningful constitutional distinction in that case. Id. While
the charge in this case extends to A1C CH’s being “substantially incapable,” we, like our
superior court and the drafters of the Benchbook, find no meaningful distinction between
the terms “incapacitated” and “incapable” for purposes of our analysis.




7
    This instructional issue formed the basis of the specified issue in this case.


                                                              11                     ACM 38434
        The necessary corollary to the court’s conclusion above in Prather is that if the
evidence shows that the alleged victim affirmatively declined participation in the sexual
act, that evidence also tends to negate an essential element of the offense as charged here.
Substantial incapability, as the Benchbook explains, is a “mental impairment . . . which
rendered the alleged victim unable . . . to physically communicate unwillingness to
engage in the sexual conduct at issue.” Benchbook at ¶ 3-45-5.d. The ability of the
alleged victim to affirmatively agree to participate or refuse to participate in a sexual act
and communicate that decision negates the existence of that incapability under this
particular provision of Article 120, UCMJ.


         The definitions section of the statute also leads to that conclusion. The statute
outlined certain circumstances in which a person legally cannot consent to sexual
activity. As the military judge instructed the panel, Article 120(t)(14), UCMJ provided
“[a] person cannot consent to sexual activity if . . . substantially incapable
of . . . physically declining participation in the sexual conduct at issue . . . .” MCM, A28-
4–A28-5 (2012 ed.). One could conceive of lawful conduct between adults in which one
person is voluntarily restrained in such a way that he is not physically capable of resisting
a sexual act, but nonetheless has the capability and the legal capacity to consent to that
act. While there may be exceptional cases that test the statutory definition, this case is
not one of them.


       Even if we assumed the facts to be as A1C CH testified, as a legal matter, she
would not have lost the capability to consent. She testified that one airman had his arm
across her chest, preventing her from getting up, while the appellant was on top of her
legs. If, under those circumstances, she freely assented to a sexual act and communicated
that assent to the appellant, then the sexual act would have been lawful, notwithstanding
the physical restraint she was experiencing. That can only be true if the “capability” at
issue is the ability to mentally form and verbally communicate one’s declination to
participate, rather than the capability to physically resist the act itself.


       While neither the parties nor the court discovered case law precisely on point,
courts have reached similar results in cases addressing substantial incapacity to decline
participation in sexual activity. In United States v. Johanson, the Coast Guard Court of
Criminal Appeals considered the issue in the context of an abusive sexual contact
charge.8 See United States v. Johanson, 71 M.J. 688 (C.G.C.C.A. 2012). The Johanson


8
 Abusive sexual contact, under Article 120(h), UCMJ in effect at the time, included sexual contact—as opposed to a
sexual act—when the alleged victim was substantially incapable of declining participation in the contact. See MCM,
A28-2 (2012 ed.).


                                                       12                                            ACM 38434
court, after analyzing the legislative history of the 2006 changes to Article 120, UCMJ,9
found the charge of abusive sexual contact legally insufficient when “evidence clearly
show[ed] that [the victim’s] mental state was not substantially impaired.”10 Id. at 693. In
United States v. Williams, 89 F.3d 165 (4th Cir. S.C. 1996), the United States Court of
Appeals for the Fourth Circuit considered an analogous provision of
18 U.S.C. § 2242(2)(B).11 . In Williams, the victim woke up to find her assailant in her
room. Id. at 168. After Williams tried to pull her underpants off, she pulled them back
on. Id. When Williams forced her legs open, the victim resisted. Id. The court held:


         The evidence negates the possibility that [the victim] was ‘physically
         incapable of declining participation in, or communicating unwillingness to
         engage in’ a sexual act with Williams. The fact that she was unsuccessful
         in fending off Williams does not mean that she was physically incapable of
         expressing her desire not to participate in sexual activity with him.


Id.


       We now turn to the evidence in this case. While the government proved that
A1C CH was being held down by A1C TN, they never contended that she lacked the
capability to refuse to participate. To the contrary, the government elicited testimony that
she did in fact refuse, by saying “no” repeatedly, but the appellant disregarded her
refusal. Although A1C CH had been drinking, she testified that she remained in control
of her faculties. She also testified that she did not consent to the appellant engaging in a
sexual act with her, and that she told him “no” several times, beginning when he got on
top of her and continuing during the sexual act. While the trial defense counsel contested
her testimony, the defense focus was on eliciting evidence to show that she was a willing
participant in the sexual act, and that evidence demonstrates that she was capable of
declining participation. The evidence also included the appellant’s interview with agents
from the Air Force Office of Special Investigations (AFOSI), where the appellant
asserted A1C CH was a willing participant, to the point of guiding his penis to achieve
penetration.

9
  The revisions to Article 120, UCMJ at issue were contained in the National Defense Authorization Act for Fiscal
Year 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136 (2006).
10
   We need not reach the Johanson court’s broader holding that only mental impairment could meet the requirement
of substantial incapacity to decline participation since the evidence in this case indicates the alleged victim did
decline participation. We leave that determination to a case in which it is squarely presented.
11
   18 U.S.C. § 2242(2)(B) was part of the Sexual Abuse Act of 1986, upon which the 2006 changes to Article 120,
UCMJ were generally based. See MCM, A28-17 (2012 ed.). It provides, in relevant part, “[Anyone who] engages
in a sexual act with another person if that other person is . . . physically incapable of declining participation in, or
communicating unwillingness to engage in, that sexual act . . . shall be fined under this title and imprisoned for any
term of years or for life.”


                                                          13                                               ACM 38434
        While the testimony raises a material dispute as to whether A1C CH did, in fact,
consent, it raises no evidence that she was physically or mentally incapable of declining
participation in the act. The government asserted that she did decline, and the appellant
asserted that she affirmatively did not. On those facts, even in the light most favorable to
the government, we must find that a reasonable fact finder properly instructed on the
definition of “substantially incapable of declining participation” could not have found
that the evidence established the second element of the offense beyond a reasonable
doubt.12 We also conclude, after making allowances for not personally observing the
witnesses, the evidence was factually insufficient to establish the second element of the
offense.


        We considered whether we could affirm a conviction under the alternative theory
of aggravated sexual assault by causing bodily harm. Article 120(c)(1)(B), UCMJ. “The
term ‘bodily harm’ means any offensive touching of another, however slight.” Article
120(t)(8), UCMJ. However, we are precluded from affirming to this alternative theory.
“Clearly, an accused cannot be convicted of a crime different from that charged.”
United States v. Wray, 17 M.J. 375, 376 (C.M.A. 1984). The Supreme Court has clearly
stated that an appellate court may not affirm a conviction on a theory not presented at
trial. “To uphold a conviction on a charge that was neither alleged in an indictment nor
presented to a jury at trial offends the most basic notions of due process. Few
constitutional principles are more firmly established than a defendant’s right to be heard
on the specific charges of which he is accused.” Dunn v. United States, 442 U.S. 100,
106 (U.S. 1979). Our superior court has also clearly stated that we may not affirm a
conviction on theory not presented at the court-martial to the trier of fact. United States
v. Riley, 50 M.J. 410 (C.A.A.F. 1999). Because the government chose not to prefer a
specification of aggravated sexual assault by bodily harm, we are foreclosed from
affirming under this materially alternative theory upon appellate review.


        Despite determining the evidence was legally and factually insufficient to sustain
the charged offense, we may nonetheless affirm so much of the finding that includes a
lesser included offense (LIO). See Article 59(b), UCMJ, 10 U.S.C. § 859(b). At trial,
neither the government nor trial defense counsel requested instructions on any potential
LIOs. However, we are not precluded from considering LIOs not instructed upon below
but necessarily included in the theory of liability presented at trial. “[A]n appellate court
may disapprove a finding because proof of an essential element is lacking or, as a result
of instructional errors concerning lesser-included offenses, may substitute a lesser-
included offense for the disapproved findings. This is true even if the lesser-included
offense was neither considered nor instructed upon at the trial of the case.” United States

12
   As discussed below, we find that the military judge deviated from the standard Benchbook definitions in this
respect, but for reasons of judicial economy decide this issue on the basis of legal and factual sufficiency alone.


                                                        14                                            ACM 38434
v. Upham, 66 M.J. 83, 87–88 (C.A.A.F. 2008);but see United States v. McCracken,
67 M.J. 467, 468 (C.A.A.F. 2009) (an appellate court may not affirm an included offense
on a theory not presented to the trier of fact).


       We review de novo whether an offense constitutes an LIO. United States v.
Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011). We apply the elements test to determine
whether an offense is an LIO of another. United States v. Jones, 68 M.J. 465, 468
(C.A.A.F. 2010) (citation omitted). The elements need not reflect identical statutory
language. United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). “Rather, after
applying normal rules of statutory interpretation and construction, [the court] will
determine whether the elements of the LIO would necessarily be proven by proving the
elements of the greater offense.” United States v. Wilkins, 71 M.J. 410, 412
(C.A.A.F. 2012). Moreover, the two offenses under consideration must not constitute
alternative bases for criminalizing the same conduct. The greater offense must require
the proof of some additional fact that the members would need to find in order to convict.
See United States v. Tunstall, 72 M.J. 191, 195 (C.A.A.F. 2013).


       Although not conclusive, the Manual lists two LIOs that may be applicable in
these circumstances: wrongful sexual contact under Article 120(m), UCMJ, and assault
consummated by a battery under Article 128, UCMJ.13 See MCM, Part IV, ¶ 45.e.(3).
Since the gravamen of the offense is most closely related to wrongful sexual contact, we
analyze that LIO next.


        Wrongful sexual contact, as a potential LIO on these facts, has three elements: 1)
that at or near San Antonio, Texas, on or about 12 November 2011, the accused engaged
in sexual contact, to wit: touching the genitals of A1C CH, with A1C CH; 2) that such
sexual contact was without the permission of A1C CH; and 3) that such sexual contact
was wrongful. See Benchbook at ¶ 3-45-11.c. Although permission is not defined in the
statute or the Manual, the Benchbook provides “‘[w]ithout permission’ means without
consent.” Id. at ¶ 3-45-11.d. The Benchbook further defines consent consistent with that
portion of Art. 120(t)(14), UCMJ that provides a person cannot consent if substantially
incapable of physically declining participation in the activity. Id. As none of the
elements employ identical language, we proceed to consider whether, in the course of


13
  Abusive sexual contact is generally an LIO of aggravated sexual assault. However, under the theory of culpability
selected by the government, that offense would still require proof that that A1C CH was substantially incapable of
declining participation in the sexual contact. Although abusive sexual contact could be charged under the theory
that the appellant engaged in sexual contact with A1C CH by bodily harm, that theory was not presented to the
members at trial and we cannot affirm a conviction to an LIO on a theory not presented at trial. See United States v.
McCracken, 67 M.J. 467, 468 (C.A.A.F. 2009).


                                                         15                                             ACM 38434
proving the elements of aggravated sexual assault, the government would necessarily
have proven the elements of wrongful sexual contact.


        Two of the elements need little additional analysis. By proving the act of
penetration, the government would necessarily have proven a touching of A1C CH’s
genitals. Accordingly the first element of wrongful sexual contact is included within the
first element of aggravated sexual assault. Similarly, since there is no evidence of a
lawful medical or military purpose for the appellant’s touching of A1C CH’s genitals, the
only authorization which would negate the element of wrongfulness would be if A1C CH
herself authorized the contact. Wrongfulness, therefore, would necessarily have been
proven if the government proved she lacked the capacity to grant such consent.


        To complete the analysis, we must determine whether the lack of permission is
included in, but not completely encompassed by proof of substantial incapability to
decline participation. As our analysis above indicates, the government would have
needed to prove more than lack of permission to prove incapability—indeed, that was the
deficiency in this case. The question is whether lack of permission is necessarily
established by proof of incapability. Looking only at the facts needed to prove each
assertion, they appear to be completely independent. Proof of incapability need not show
any speech, gesture or other manifestation of assent. In fact, it is commonly proved by
the absence of such things when they would normally be expected. Similarly, proof that
the alleged victim affirmatively withheld permission—as in this case—usually negates
the lack of capability. However, the proper analysis is not based on whether the evidence
is the same, but rather whether the greater element necessarily proves the lesser.


       In this case, the greater element is that A1C CH was substantially incapable of
declining participation. The element establishes the offense because, as a matter of law,
she cannot consent if she is substantially incapable of declining participation. In other
words, proof of incapability is always proof of lack of permission because the alleged
victim legally cannot grant permission. If incapability is proven, permission is legally
impossible despite any conduct by the victim to the contrary. The greater/lesser character
of the elements is established not by any factual relationship, but rather by the legal
relationship. Because that legal relationship exists, proof of incapability does necessarily
prove lack of permission and the second element of wrongful sexual contact is included
within the second element of aggravated sexual assault as charged in this case.


      We find that the evidence was factually and legally sufficient to sustain a
conviction for the LIO of wrongful sexual contact. After making allowances for not


                                            16                                    ACM 38434
having personally observed the witnesses, we find that A1C CH’s testimony that she told
the appellant “no” was more credible than the testimony of the other airmen in the room,
and more convincing than the version of events asserted by the appellant in his interview
with AFOSI. As the evidence that the appellant touched A1C CH’s genitals is
uncontroverted, we conclude that the evidence establishes all three elements of wrongful
sexual contact beyond a reasonable doubt.


                                             Instructional Error


        The findings instructions given by the military judge deviated from the Benchbook
on the aggravated sexual assault charge without explanation on the record. The
instructions omitted any version of the second definition in Benchbook ¶ 3-45-5.d., which
defined substantial incapacity, a key term in the second element which is not within the
normal understanding of most members. Although neither party objected to the
omission, we still review the omission for plain error. See United States v. Tunstall,
72 M.J. 191, 193 (C.A.A.F. 2013); R.C.M. 920(f).14 In light of our analysis of the legal
and factual sufficiency of the aggravated sexual assault charge, we conclude that the issue
of instructional error is moot.


                                             Improper Argument


       The appellant also asserts, pursuant to Grostefon, 12 M.J. at 431, that the military
judge erred “when she allowed the prosecution to use propensity evidence of a recording
introduced for charges unrelated to appellant’s Article 120 offenses during government
counsel’s argument.”


        The evidence in question was part of an audio recording that was the subject of
pretrial motions as to its admissibility. The recording, from a smartphone chat
application called Voxer, included the appellant using the term “guaranteed ass” to refer
to some women he had attempted to bring onto Aviano AB. The recording was admitted
for the purpose of showing the appellant’s motive relevant to the disorderly conduct
charge, but the military judge gave the following limiting instruction just prior to closing
argument:



14
  Although we recognize the rule describes this as “waiver,” this is in fact forfeiture. See United States v. Sousa,
72 M.J. 643, 651 (A.F. Ct. Crim. App. 2013).


                                                        17                                             ACM 38434
       [The recording] is not part of any offense with which Airman Jones is
       charged. The Voxer recording may be considered for the limited purpose of
       its tendency, if any, to show a motive for Airman First Class Jones to return
       to the front gate on 15 September 2012.


       You may not consider this evidence for any other purpose and you may not
       conclude or infer from this evidence that the accused is a bad person or has
       general criminal tendencies, and that he therefore committed the charged
       offenses.


      During closing argument, government trial counsel emphasized the appellant’s
phrase “guaranteed ass.” Despite the military judge’s instruction, government counsel
opened his argument by playing the recording, and then argued to the members:


       Guaranteed ass. “We had guaranteed ass. We had guaranteed ass on
       this base and [Airman C] and Italian gate guards got in the way.” Now,
       he’s not charged for this Voxer recording itself, but this Voxer recording
       gives you an insight into the mindset of Airman Jones. This is who Airman
       Jones is.


This argument was clearly improper. However, the mere existence of improper argument
does not automatically merit relief.


       Trial defense counsel did not initially object to this line of argument. Only when
government counsel stated that appellant believed the women at Aviano AB who got in
his car were “guaranteed ass,” did trial defense counsel object. The basis for that
objection was that there was no allegation of assault concerning those women.
Government counsel responded that he was not talking about any offense related to those
women, but about the term generally. The military judge ruled that his reference was a
fair comment on the evidence. Although the military judge did not explain her ruling on
the record, we note that her limiting instruction allowed the use of that specific reference,
at least in so much as it related to the appellant’s motive to come back to the gate.
Government counsel continued to use the term throughout closing argument without
further objection.




                                             18                                    ACM 38434
       Failure to object to improper argument before the military judge begins to instruct
the members on findings constitutes waiver of the objection.15 See R.C.M. 919.
We review such arguments for plain error. See United States v. Halpin, 71 M.J. 477, 479
(C.A.A.F. 2013). Under the plain error analysis, the appellant has the burden of
demonstrating prejudice. Id. In the context of improper argument, we test for prejudice
by balancing three factors: the severity of the improper argument, the measures adopted
to cure the improper argument, and the weight of the evidence supporting the conviction.
See id. at 480.


        In this case, our Halpin analysis is somewhat complicated by our determination
that the finding of guilt to the aggravated sexual assault offense was legally insufficient.
It is possible that this specification survived the trial to be before us on review only
because of the improper argument by counsel. However, our favorable review of his
legal sufficiency claim on the basis of the government’s charging decision should not
result in a windfall for the appellant on this separate issue. We determined above that a
properly instructed panel would have found the appellant guilty of the LIO of wrongful
sexual conduct. Since the members convicted the appellant of the larger offense, it stands
to reason that they would have convicted on the LIO, and we would have that
specification before us on review. The improper argument was only prejudicial to the
extent it would have caused the members to convict him of that offense based upon
something other than the weight of the evidence alone. Accordingly, we conclude that
our Halpin analysis should focus on the prejudice the improper argument would have
created in a determination of guilt to the legally sufficient LIO of wrongful sexual
contact.


       We find that the appellant has not shown that he was prejudiced by the improper
argument. In this case, the government counsel’s improper use of the appellant’s words
was pervasive, but constituted more of a punchline than an earnest suggestion of an
actual willingness to disregard the law. We also recognize that the phrase was already
properly before the members in the appellant’s own voice. In that respect, this is unlike
argument that improperly compares the appellant to some historical or literary villain or
invokes evidence that was ruled completely inadmissible. Moreover, government
counsel’s improper argument was ameliorated by the military judge’s limiting instruction
on this specific matter given just prior to argument. Her instruction told them they must
disregard any suggestion that the recording indicated the appellant was a bad person or
had general criminal tendencies. We presume the members followed that instruction.
See United States v. Stewart, 71 M.J. 38, 43 (C.A.A.F. 2012). Unlike counsel’s
argument, that instruction was available to the members during deliberation.

15
  As noted in reference to R.C.M. 920 above, we construe the R.C.M. 919 reference to waiver as forfeiture.
See Sousa, 72 M.J. at 651.


                                                   19                                         ACM 38434
       Finally, the weight of the evidence to sustain the conviction to the LIO of
wrongful sexual contact is substantial. A1C CH’s testimony that she said “no” was
convincing, supported by other testimony, and consistent with independent evidence of
her post-assault conduct. On balance, we are confident that the appellant’s conviction for
wrongful sexual contact rests upon the weight of the evidence alone, and not on the basis
of the improper tag line used by government counsel. The appellant has therefore failed
to meet his burden of showing prejudice, and this issue is without merit.


                                  Sentence Reassessment


       Having set aside a finding of guilty to one of the specifications, we must now
“determine what sentence the court-martial would probably have adjudged if the error
had not been committed at trial.” United States v. Davis, 48 M.J. 494, 495
(C.A.A.F. 1998). This court has “broad discretion” when reassessing sentences.
United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has
held that a Court of Criminal Appeals can reassess a sentence to cure the effect of
prejudicial error where that court can be confident “that, absent any error, the sentence
adjudged would have been of at least a certain severity.” United States v. Sales,
22 M.J. 305, 308 (C.M.A. 1986).


        In determining whether to reassess a sentence or order a rehearing, we consider the
totality of the circumstances with the following as illustrative factors: (1) dramatic
changes in the penalty landscape and exposure, (2) the forum, (3) whether the remaining
offenses capture the gravamen of the criminal conduct, (4) whether significant or
aggravating circumstances remain admissible and relevant, and (5) whether the remaining
offenses are the type with which we as appellate judges have the experience and
familiarity to reliably determine what sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15–16. Because there are factors on both sides in this case, we
set out our rationale in some detail below.


       The penalty landscape is significantly different as a result of the aggravated sexual
assault specification being set aside. The appellant originally faced confinement for
32 years and 6 months. In arriving at this maximum, the military judge merged some of
the specifications for sentencing, including the aggravated sexual assault and indecent
conduct specifications (which the government requested “because the same conduct is
charged in both specifications”). These offenses carried a maximum sentence to
confinement of 30 years and 5 years, respectively. We have now set aside the aggravated
sexual assault specification and substituted a wrongful sexual contact specification,


                                             20                                   ACM 38434
which carries a maximum sentence of 1 year confinement and a dishonorable discharge.
Based on the merging decision requested by the trial counsel, the 5 year maximum for the
original specification of indecent conduct is now used to calculate the new maximum
sentence—7 years and six months confinement, along with a dishonorable discharge.


       Despite the substantial drop in the maximum punishment, the adjudged sentence
of three years confinement is still less than one-half of the revised maximum.
Government counsel argued for a sentence including 8 to 10 years of confinement, which
is above the revised maximum. Furthermore, it is only one component of a punishment
that also included dishonorable discharge, forfeiture of all pay and allowances, and
reduction to E-1.


      The appellant chose to be sentenced by members, which generally weighs in favor
of remanding a case for a rehearing on sentence. Our superior court has observed that
“judges of the courts of criminal appeals are more likely to be certain of what a military
judge would have done as opposed to members.” Winckelmann, 73 M.J. at 16.


       The factor that weighs most strongly in favor of reassessment is the highly similar
nature of the offense that has been set aside and the LIO that remains. All of the same
conduct would have been before the members on either charge, and they would have
heard all of the same evidence. Although aggravated sexual assault in the abstract is
more serious, the factual core of this offense—engaging in sexual intercourse with
A1C CH without her consent—remains the same. We conclude, based on our
experience, that members derive sentences based on the conduct shown by the evidence,
not the legal label courts attach to that conduct. See Davis, 48 M.J. at 495–96. We also
note that the unremitting nature of the appellant’s misconduct would have remained
before the court. Whether his conduct at technical school legally constituted sexual
assault or wrongful sexual contact, the fact remains that for the majority of his short
career, he was unable to conform his conduct to the requirements of the UCMJ.


      Finally, we conclude that the type of offenses of which the appellant remains
convicted are those with which we are experienced and familiar. The appellant’s drunken
and undisciplined conduct while overseas and the sexual misconduct he committed while
in technical school are regrettably not infrequent offenses in military courts.
Our combined experience provides a substantial basis to judge how members tend to treat
such offenses individually and when they appear as a more substantial pattern of
misconduct.




                                            21                                  ACM 38434
        Under the totality of the circumstances, we are confident that we can reliably
determine that the members would have imposed no less than the same sentence whether
the appellant was convicted of aggravated sexual assault or wrongful sexual contact.
Our finding did not involve the exclusion of evidence resulting in an entire offense being
removed from the members’ purview or a reduction to a less culpable state of mind.
It involved the legal interpretation of the specification the government elected to pursue.
The evidence of the appellant’s culpability and the harm inflicted on A1C CH would
have remained exactly the same. Convinced, as we are, that members sentence based on
the underlying conduct and not the name of the offense, we conclude that sentence
reassessment is appropriate in this case. We reassess the sentence to be the same as the
sentence adjudged.


                                                 Conclusion


       The finding of guilty of Specification 1 of Charge IV,16 alleging aggravated sexual
assault of CH, is set aside, substituting therefor a finding of guilty to the lesser included
offense of wrongful sexual contact. All other findings are affirmed.


        The findings, as modified, and the sentence, as reassessed, are correct in law and
fact, and no error materially prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). They are accordingly,
AFFIRMED.


HECKER, Senior Judge (concurring in part and dissenting in part):


        I concur with the majority’s decision with the exception of its conclusion that
sentence reassessment is appropriate. Unlike my brethren, I am not confident that, absent
this error, the sentence adjudged would have been at least a certain severity, given the
significant change in the penalty landscape, the sentencing argument made by the trial
counsel, and the uncertainty of what the panel members would have done in sentencing if
they had been properly instructed on the aggravated sexual assault offense.




16
  This opinion refers to the numbering of Specifications and Charges as they were numbered on the original charge
sheet.


                                                       22                                           ACM 38434
Accordingly, I would return the case to the convening authority for a sentence rehearing.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            23                                  ACM 38434
