UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, TELLITOCCI, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Sergeant GEORGE D. BROWN
                          United States Army, Appellant

                                   ARMY 20130177

               Seventh U.S. Army, Multinational Training Command
                         Joshua S. Shuey, Military Judge
           Lieutenant Colonel David E. Mendelson, Staff Judge Advocate


For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr.; Major Vincent T. Schuler, JA; Captain
Patrick A. Crocker, JA (on brief).

For Appellee: Captain Carling M. Dunham, JA (argued); Colonel John P. Carrell,
JA; Lieutenant Colonel James L. Varley, JA; Major Catherine L. Brantley, JA;
Captain Daniel M. Goldberg, JA (on brief).


                                  21 November 2014
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

TELLITOCCI, Judge:

       A panel consisting of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of aggravated
sexual assault, in violation of Article 120, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 920 (2006 & Supp. V 2012). 1 The panel sentenced
appellant to a bad-conduct discharge, confinement for six months, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence.


1
 Appellant was acquitted of one specification of assault consummated by battery, in
violation of Article 128, UCMJ.
BROWN—ARMY 20130177

     This case is before us pursuant to Article 66, UCMJ. Appellant raises
numerous assignments of error, one of which merits discussion but no relief. 2

                                        FACTS

       In the early morning of 3 June 2012, appellant and Ms. AB engaged in sexual
intercourse in the appellant’s hotel room in Nuremburg, Germany. Earlier that
evening, Ms. AB, a 17-year-old local national, had been drinking with the appellant,
whom she had just met, and others at a night club. Witnesses attributed various
levels of intoxication to AB, but everyone agreed that she was intoxicated to such a
degree that she vomited in the street outside the club and the group decided it was
best to take her to appellant’s hotel room to recover. Appellant volunteered to stay
behind in the room to keep an eye on AB.

       AB’s recollection of events throughout the evening and in the hotel is
intermittent. She testified that she did not consent to intercourse with appellant, that
she was unable to resist, and that “she could see what was happening but couldn’t do
anything.” After the sexual act, AB got under the bed covers and went to sleep.
Shortly thereafter, appellant woke up AB, got her out of bed, assisted her with
putting on her clothing, and told her she had to leave the room. AB testified that
appellant then escorted her to a pedestrian area near the hotel and left her standing
there while he proceeded back to the club. Sometime thereafter, AB returned to the
street outside of the club crying while shouting that she had been raped.

       The government charged appellant with one specification of aggravated sexual
assault by engaging in a sexual act with AB, “who was substantially incapacitated.”
At trial, appellant filed a motion requesting the military judge instruct the panel with
a modified version of the substantial incapacitation instruction from the Military
Judge’s Benchbook. Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 3-45-5d (1 Jan. 2010). The version
proposed by the defense (as modified by strike-outs from the Benchbook version and
substitution as highlighted below) read:

                    “Substantially incapacitated” and “substantially
             incapable” mean 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 an individual unable to
             appraise the nature of the sexual conduct at issue, unable

2
 Appellant also personally raises three issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merit discussion or relief.




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BROWN—ARMY 20130177

             to physically communicate unwillingness to engage in the
             sexual conduct at issue, or otherwise unable to make or
             communicate competent decisions or to decline
             participation in the sexual act.

       The military judge denied the request to strike language from the Benchbook,
but the military judge did add the language requested by appellant in his second
proposed addition—that is “unable to decline participation in the sexual act.” The
version of the instruction ultimately provided by the military judge was:

             “Substantially incapacitated” means 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, unable to decline participation in
             the sexual act, or otherwise unable to make or
             communicate competent decisions.

                             LAW AND DISCUSSION

      In the pertinent assignment of error, appellant alleges:

             THE MILITARY JUDGE ABUSED HIS DISCRETION BY
             USING THE TERM “COMPETENT DECISION” TO
             DEFINE “SUBSTANTIALLY INCAPACITATED” IN
             THE JURY INSTRUCTION, THEREBY LESSENING
             THE GOVERNMENT’S BURDEN OF PROOF FOR THE
             ELEMENT OF SUBSTANTIAL INCAPACITATION.

       An allegation that the panel members were improperly instructed is an issue
that we review de novo. United States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2013);
United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). When instructional error
regarding the elements of a crime is found, the error must be tested for prejudice
under the standard of harmless beyond a reasonable doubt. United States v. Upham,
66 M.J. 83, 86 (C.A.A.F. 2008). The instructions given to a panel are reviewed “in
the context of the overall message conveyed” to the panel. United States v. Prather,
69 M.J. 338, 344 (C.A.A.F. 2011) (quoting Humanik v. Beyer, 871 F.2d 432, 441 (3d
Cir. 1989)).

       At the outset, we note the language “otherwise unable to make or
communicate competent decisions” in the Benchbook instruction is not found in
Article 120, UCMJ. Article 120 only uses the word “competent” in explaining the



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BROWN—ARMY 20130177

affirmative defense of consent relative to a “competent person.” UCMJ art.
120(g)(8). In the Benchbook definition of “substantially incapacitated,” the object
modified by “competent” is not a “person” as in Article 120, but is “decisions.”
There is no explanation for this change of language in the Benchbook and neither the
parties nor this court have been able to determine the source of, or rationale behind,
this change.

      Appellant argues the standard, unmodified Benchbook version, would have
allowed the members to find guilt if they decided that AB made a “bad” decision.
Put another way, due to the instruction given, the members could have made a
determination that a poor exercise in judgment or a bad decision equals an
“incompetent” one. Therefore, under this theory, the members could have found AB
was not capable of making competent decisions and was, therefore, substantially
incapacitated. We disagree with appellant’s argument.

      In addition to the standard Benchbook instruction regarding substantial
incapacitation, the military judge properly instructed the panel regarding consent to
include the following:

             [C]onsent is a defense to that charged offense. “Consent”
             means words or overt acts indicating a freely given
             agreement to the sexual conduct by a competent person.
             . . . . A person cannot consent to sexual activity if that
             person is substantially incapable of appraising the nature
             of the sexual conduct at issue due to mental impairment or
             unconsciousness resulting from the consumption of
             alcohol, drugs, or similar substance, or otherwise is
             substantially incapable of physically declining
             participation in the sexual conduct at issue; or
             substantially incapable of physically communicating
             unwillingness to engage in the sexual conduct at issue.
             The prosecution has the burden to prove beyond a
             reasonable doubt that consent did not exist. Therefore, to
             find the accused guilty of the offense of aggravated sexual
             assault, as alleged in the Specification of Charge I, you
             must be convinced beyond a reasonable doubt that, at the
             time of the sexual act alleged, [AB] did not consent.

      The argument that the substantial incapacitation instruction lessened the
government’s burden is, at best, strained. The instruction given by the military
judge contained language not included in the statutory definition of “substantially
incapacitated.” However, we are unable to conclude that such an instruction
lessened the government’s burden or that it prejudiced the rights of appellant.




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BROWN—ARMY 20130177

      The military judge defined consent in terms of a competent “person” and not a
“decision.” Since “substantial incapacitation” is a condition under which a person is
incapable of giving legal consent, the underlying, determinative finding is whether
consent was or was not given. 3 Here, the panel was properly instructed regarding
consent and they were charged that the government had the burden to prove beyond a
reasonable doubt that AB did not consent. As a result, in convicting appellant, the
panel necessarily found that AB did not consent because consent was not freely
given by a “competent person.”

       Assuming, arguendo, that utilizing the use of the phrase “competent
decisions” was error, we are convinced that in the context of this case and
considering the entirety of the instructions given, any such error was harmless
beyond a reasonable doubt. Accord United States v. Cartwright, ACM 37641, 2013
CCA LEXIS 735 (A.F. Ct. Crim. App 15 Aug. 2013); United States v. Perry,
NMCCA 201100273, 2012 CCA LEXIS 2008 (N.M. Ct. Crim. App. 31 Jul. 2012).

                                  CONCLUSION
 
      Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.

                                       FOR THE COURT:




                                       SHELLEY GOODWIN-MATHERS
                                       Deputy Clerk of Court




3
  Giving consent can be viewed as a decision or, at a minimum, as a manifestation of
a mental process or calculation. This is demonstrative of just how closely
intertwined are the concepts “substantially incapacitated” and “substantially
capable,” with only an “abstract distinction” between them. Prather, 69 MJ. 338.




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