          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                            Airman First Class JARRID R. GABLE
                                   United States Air Force

                                              ACM 38612

                                          5 November 2015

         Sentence adjudged 1 February 2014 by GCM convened at Minot Air Force
         Base, North Dakota. Military Judge: Shaun S. Speranza.

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         and reduction to E-1.

         Appellate Counsel for Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States: Major Meredith L. Steer and
         Gerald R. Bruce, Esquire.

                                                 Before

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         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



ZIMMERMAN, Judge:

       At a general court-martial composed of officer and enlisted members, Appellant
was convicted, contrary to his pleas, of sexual assault, attempted sexual assault, and
abusive sexual contact, in violation of Articles 80 and 120, UCMJ, 10 U.S.C. §§ 880,
920. The court sentenced Appellant to a bad-conduct discharge, confinement for 6
months, hard labor without confinement for 3 months, and reduction to E-1. The
convening authority did not approve the hard labor without confinement and approved
the remainder of the sentence as adjudged.
       On appeal, Appellant contends the Government failed to offer sufficient evidence
to corroborate the essential facts of Appellant’s confession. He also argues that if we
conclude Appellant waived this issue, we should find his trial defense counsel provided
ineffective assistance of counsel. Lastly, Appellant asks this court to find the evidence
legally and factually insufficient to prove the offense of sexual assault, because the
Government failed to show Appellant knew or reasonably should have known A1C AL
was impaired in such a manner as to be incapable of consenting to the sexual act. 1 We
disagree with all three contentions and affirm the findings and sentence.

                                                  Background

       Appellant was convicted of three offenses: sexual assault of A1C AL when she
was incapable of consenting to the sexual act due to impairment by alcohol; abusive
sexual contact upon Ms. DM2 by touching her genitalia through her clothing; and
attempted sexual assault of Ms. DM. The crimes against Ms. DM arose from the same
incident and were merged by the trial judge for sentencing purposes.

       To prove sexual assault of A1C AL, the Government presented testimony from
A1C AL, Ms. DM, Ms. NZ (who testified about a prior sex offense by Appellant), a
forensic biologist from the U.S. Army Criminal Investigation Laboratory, the Air Force
Office of Special Investigations (AFOSI) case agent, and seven friends and coworkers.

        On the night of 21 December 2012, A1C AL went out to celebrate a friend’s
birthday. They went to a local bar, where she met up with another group of friends she
knew from work and stayed at the bar until closing. A1C AL testified she had consumed
a shot of vodka, three Vegas bombs, five Patron shots, and four Red Bull and vodkas
throughout the evening before arriving at Appellant’s house. After departing the bar, the
group went to Appellant’s house which he shared with A1C AL’s coworker, and A1C AL
remained at the house until the next morning. She had met Appellant only one time prior
to that night and had no significant interaction with him on that prior occasion.

        A1C AL testified her level of intoxication was one of the drunkest she had ever
been, and testified about her inability to recall events from her time at the bar and at
Appellant’s house. When retelling events from that night, she could not recall any sexual
activity and woke up on the couch sensing nothing out of the ordinary. The others
gathered at Appellant’s house were a mix of friends and coworkers of both Appellant and
A1C AL. Witnesses testified to their own levels of intoxication while at Appellant’s
house, ranging from no alcohol use to passing out due to drunkenness shortly after

1
  Appellate defense counsel added a footnote to this last assignment of error, stating they had not seen the sealed
material and requested opportunity to supplement this issue or pleadings entirely after review of sealed material.
Appellate defense counsel did not file supplemental pleadings after viewing sealed portions of the record of trial.
2
  The witness we refer to as Ms. DM has been identified by various initials in post-trial documents and in appellate
counsel’s pleadings. She has been referred to as DMM, DM, and DW, but is one and the same person.



                                                         2                                             ACM 38612
arrival. Despite the wide-ranging intoxication levels, most of the witnesses testified they
could observe A1C AL was intoxicated. More than one witness recounted that A1C AL
was obviously drunk. They could tell from her body movements, the slurring of her
words, how she was acting, the look of her eyes, her unawareness of her surroundings or
other people near her, and how she went to the couch in the living room and passed out
while the rest of the attendees continued to drink and socialize. These witnesses also
testified Appellant was at the house with the group while A1C AL was there.

        After the night at Appellant’s house, A1C AL saw Appellant several days later at
an on-base bar on New Year’s Eve. It was on this occasion that Appellant first spoke to
A1C AL about having sexual intercourse with her at his house. During the conversation,
she asked him his first name, to which he replied, “You don’t remember what happened
last time you were at the house?” When she responded “no,” Appellant stated they had
“hooked up.” She then asked Appellant, “all the way?” to which Appellant replied “yes.”
Trial defense counsel did not object to this testimony. This conversation took place prior
to the investigation. Additionally, testimony from Appellant’s friends indicate he told
two of them what happened with A1C AL, telling one friend he had sex with A1C AL
that night at his house. Testimony from the friends was elicited by trial defense counsel
on cross-examination.

        During her testimony at trial, A1C AL identified a prosecution exhibit containing
the full text message of a conversation she had with Appellant on 1 February 2012, which
occurred during the criminal investigation by AFOSI. After trial counsel offered the
document into evidence as a fair and accurate representation of the text message
conversation, the military judge asked trial defense counsel if he had any objection. Trial
defense counsel raised none, and the military judge admitted the document into evidence.

      A1C AL initiated the text message exchange with Appellant by writing: “Im
buggin out.. its been bugging me and I want to ask.. you said we hooked up..what all
went down? Plz don’t be all confrontational I just wanna know because I don’t even
know if you had a condom on.”

       After a bit of back and forth regarding the status of his investigation and whether
he ought to be communicating with her, Appellant gave more detail on the interactions
leading up to sexual intercourse. The following statements by Appellant are excerpts
from the full exchange contained in the admitted exhibit:

             Don’t worry I practiced safe sex for both of us . . .

             I used a condom. And I’m clean so don’t worry about that . . .

             If you weren’t into it. It wouldn’t have happened. I turned to
             go back upstairs and you pulled my arm towards you and
             started kissing me and it took off from there . . .

                                             3                                   ACM 38612
                  I told you to go sleep in my room because you were hanging
                  off the couch. I was about to lay down and you began
                  walking into the bathroom area which isn’t my room so I
                  walked you downstairs to my room and you sat on the bed
                  and I started walking away and you grabbed my arm and
                  started kissing me and putting your arms around me and it
                  progressed from there . . .

                  Don’t be sorry and don’t be embarrassed. We were both
                  really drunk . . . .

        In addition to the testimony of the two victims in the charged offenses, the
Government also presented testimony from Ms. NZ, who considered Appellant one of her
best friends and one of her only friends at the time. Ms. NZ testified she was invited by
Appellant to come over and drink one night in late October or early November 2012. She
accepted the invitation, and they spent time together at Appellant’s house, but she did not
drink that night. When she decided she wanted to go to sleep, she went to a couch in the
living room and fell asleep on the couch. Appellant went to his room downstairs. She
awoke to him shaking her and asking if she wanted to move to his roommate’s bed which
was also downstairs. Shortly after she lay down on the roommate’s bed, Appellant
entered the room and tried to get in bed with her. She told him she didn’t want to sleep in
the bed with him and went back to the couch. She fell asleep again on the couch, and
later awoke to Appellant pulling her pants down to her knees, and she pushed him off.

       The AFOSI case agent and the forensic biologist testified about physical evidence
found in Appellant’s room. The case agent testified that he searched Appellant’s house
and seized evidence, including a fitted bed sheet. The forensic biologist testified about
her analysis of the bed sheet, including her findings that the DNA present in a semen
stain on the bed sheet matched both the Appellant’s and A1C AL’s DNA profiles. The
DNA report was admitted. The biologist conceded that the presence of both sets of DNA
on the sheet did not necessarily indicate that they were deposited at the same time.

                                       Corroboration of Admissions3

      On appeal, Appellant asserts there was no independent evidence to corroborate his
statements that he and A1C AL had sexual intercourse. Appellate defense counsel
addresses the DNA evidence presented by the Government to prove sexual intercourse,

3
  Appellate defense counsel presented the first issue as a lack of sufficient corroboration of Appellant’s confession;
however, the record did not contain a confession or acknowledgement of guilt by Appellant. He told witnesses he
had sexual intercourse with A1C AL but did not acknowledge guilt. In this opinion, we will refer to the statements
made by Appellant as admissions. “Admission” is defined in Mil. R. Evid. 304(a)(1)(C) as a “self-incriminating
statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.”



                                                          4                                              ACM 38612
and argues the evidence actually contradicted Appellant’s statement that he used a
condom because it is unlikely that semen would have gotten on his bed sheet as a result
of this sexual encounter. Further, appellate defense counsel contends the Government
offered no evidence to corroborate Appellant’s motive, intent, involvement with A1C
AL, or opportunity. We disagree with the contention that there was no independent
evidence to corroborate the essential facts in Appellant’s admissions.

       Appellant’s trial occurred prior to our superior court’s decision in United States v.
Adams, where the court clarified that the corroboration requirement applied
independently to each essential fact in a confession or admission that the Government
wishes to admit. 74 M.J. 137 (C.A.A.F. 2015). Only those corroborated facts are
admissible, and the remaining uncorroborated facts must be excised. Id. at 140. Given
this development in the law on corroborating confessions, Appellant forfeited, rather than
waived, the error by failing to object at trial. United States v. Humphries, 71 M.J. 209,
211 (C.A.A.F. 2012) (“Because the law at the time of trial was settled and clearly
contrary, it is enough that the error is plain now, and the error was forfeited rather than
waived.”).

       If an appellant forfeited an objection by failing to raise it at trial, we review for
plain error. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Under a plain
error analysis, a military appellate court “will grant relief in a case of non-constitutional
error only if an appellant can demonstrate that (1) there was error; (2) the error was plain
and obvious; and (3) the error materially prejudiced a substantial right of the accused.”
United States v. Clifton, 71 M.J. 489, 491 (C.A.A.F. 2013). The plain error doctrine “is
to be used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.” United States v. Fisher, 21 M.J. 327, 328–29 (C.M.A. 1986)
(quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)) (internal quotation
marks omitted).

       Admitting into evidence a confession or admission by an accused without
corroboration of all essential facts would be plain error. In this case, the essential facts in
Appellant’s admissions were sufficiently corroborated by independent evidence;
therefore, the military judge did not commit plain error when he admitted Appellant’s
admissions.

       Military Rule of Evidence 304(c)(1)–(2) reads in pertinent part:

              An admission or a confession of the accused may be
              considered as evidence against the accused . . . only if
              independent evidence . . . has been admitted into evidence
              that corroborates the essential facts admitted to justify
              sufficiently an inference of their truth. . . . If the independent
              evidence raises an inference of the truth of some but not all of
              the essential facts admitted, then the confession or admission

                                              5                                     ACM 38612
                  may be considered as evidence against the accused only with
                  respect to those essential facts stated in the confession or
                  admission that are corroborated by the independent evidence.

       The rule requires independent evidence sufficient to justify an inference of the
truth of the essential facts admitted from the confession.4 While our superior court had
“previously noted that a sufficient amount of evidence can be slight, the evidence must
nevertheless be sufficient in quantity and quality to meet the plain language of the rule.”
Adams, 74 M.J. at 140. What constitutes an essential fact of an admission or confession
varies by case, and in previous case law has included “time, place, persons involved,
access, opportunity, method, and motive of the crime.” Id.

       Appellant made three pretrial statements regarding sexual intercourse with A1C
AL, the text messages containing the most detailed description of the incident. Besides
the sexual act itself, essential facts from Appellant’s admissions included the site of the
sexual act, A1C AL’s level of impairment and his characterization of her condition, and
his opportunity and access to A1C AL. We have analyzed whether there was sufficient
corroboration for each essential fact drawn from Appellant’s verbal and text message
admissions and find they were sufficiently corroborated.

       Sexual Act: Independent evidence consisting of the AFOSI case agent’s
testimony, testimony from the Army laboratory’s forensic biologist, and the bed sheet
stained with semen containing a mixture of Appellant’s and A1C AL’s DNA sufficiently
corroborated Appellant’s admission of sexual intercourse. Although not conclusive, this
evidence is sufficient to justify an inference of truth of that essential fact in his admission.
The case agent testified he searched Appellant’s house on 3 January 2013, seized a bed
sheet from Appellant’s bedroom, and sent the sheet to be analyzed by the Army crime
lab. The forensic biologist testified she discovered and conducted DNA testing of a
semen specimen located in one area of the sheet, compared it to known DNA standards
from Appellant and A1C AL, and found a mixture in the specimen consistent with the
DNA profiles of Appellant and A1C AL.

        Appellant argues that other explanations for the presence of the DNA on his sheet
render the expert testimony insufficient to corroborate the essential fact that the two
engaged in intercourse. He points out that the expert conceded that A1C AL’s DNA
could have been transferred to the sheet simply by her lying on the bed. He adds that the
evidence he used a condom further undermines any inference that semen found on the
sheet was related to sexual contact with A1C AL. We find that argument unpersuasive.
First, A1C AL testified that she had never been in Appellant’s bedroom before or after
the alleged incident, so the opportunity for innocent transfer of DNA to Appellant’s fitted
4
  Mil. R. Evid. 304(c)(4) reads: “The independent evidence necessary to establish corroboration need not be
sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession.
The independent evidence need raise only an inference of the truth of the essential facts admitted.”



                                                         6                                              ACM 38612
sheet was limited. Second, the DNA was found specifically in a location the expert
identified as a semen stain. Finally, Appellant’s suggestion that condom use would have
prevented the transfer of semen, and presumably any commingled DNA from A1C AL,
relies on its own set of inferences related to both the extent of such condom use and
Appellant’s own post-intercourse conduct. The evidence needed to corroborate an
admission need not foreclose all other reasonable possibilities. The independent evidence
“need not [establish reliability] beyond a reasonable doubt or by a preponderance of the
evidence.” United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997). We do not read
Adams to change the well-established rule that a sufficient amount of evidence can be
slight, but rather to reinforce the notion that the evidence must raise an inference of the
truthfulness of each essential fact at issue. We find, despite potential other explanations,
that the presence of a semen stain on Appellant’s bed sheet containing commingled DNA
from Appellant and A1C AL is sufficient to justify an inference of truth as to Appellant’s
admission that he and A1C AL engaged in sexual intercourse in his bed.

       Place: The evidence described above similarly serves as independent
corroboration of Appellant’s admission that he guided A1C AL from the couch to his
bedroom. According to the agent, the sheet was seized from Appellant’s bed less than
two weeks after the sexual act occurred. The presence of A1C AL’s DNA on the bed
sheet in his room corroborated Appellant’s statement that he took her to his room on 22
December 2012.

       A1C AL’s Impairment and Appellant’s Knowledge: There is sufficient
independent evidence to corroborate Appellant’s text message admissions describing
A1C AL’s state of intoxication. The essential facts include both his description of A1C
AL as “really drunk” as well as his description of her behaviors that support an inference
that she was incapable of consent and that he either knew or reasonably should have
known of that condition. Via text message, Appellant described how A1C AL was
hanging off the couch, and he had to assist her to his bedroom when she began to walk
into the bathroom area instead. Multiple witnesses testified about A1C AL’s intoxication
from alcohol in the late hours of 21 December into the early hours of 22 December 2012.
First, A1C AL testified she was drunk. Throughout the course of the night, she had
drunk a shot of vodka, three Vegas bombs, five Patron shots, and four Red Bull vodkas.
She caught herself stumbling a couple of times, and even vomited in a trashcan after her
last shot of alcohol at the bar. She described her condition that night as one of her
“drunker nights” and could not recall certain events that night, having only “snapshots”
of memories at the bar and Appellant’s house. Second, witnesses described A1C AL as
obviously drunk at Appellant’s house. They testified they could tell she was drunk from
her body movements, the way she acted, and the appearance of her eyes. They also
recounted how A1C AL went to a couch in the living room to sleep or pass out while the
party continued around her. Their collective testimony depicts A1C AL as highly
intoxicated while at Appellant’s house.



                                             7                                    ACM 38612
       Access and Opportunity: Independent evidence also corroborated Appellant’s
access to A1C AL while she was impaired by alcohol and his opportunity to take her
from the living room couch to his bedroom. Appellant’s text message explained the
condition in which A1C AL slept on the couch as the reason for telling her to go sleep in
his bedroom. Several witnesses confirmed A1C AL passed out on the couch in the living
room in plain view and remained there while the rest of the group continued to drink and
socialize. She only awakened momentarily when her friends threw ping pong balls at
her, then fell into a drunken sleep again, remaining on the couch when witnesses went to
bed or left the house. Testimony regarding A1C AL’s intoxication and her drunken sleep
in an open area corroborated Appellant’s admitted access, opportunity, and his ability to
observe her hanging off the couch.

        Furthermore, the Government presented photographs and testimony regarding
Appellant’s bedroom, located downstairs from the living room and sole bathroom on the
main floor. This evidence is consistent with, and corroborates, Appellant’s text message
describing the bathroom area as not being in the same area of the house as his bedroom.
It also corroborates his admission that he walked her downstairs to his room, which was
the location of the sexual act.

       Similarity to Past Sexual Offense: Last, we considered Ms. NZ’s testimony about
an uncharged sexual offense for its corroborative value. While not alike in all respects,
Appellant’s actions from the separate uncharged offense were sufficiently similar to
Appellant’s admissions about how he approached A1C AL while she was asleep on the
couch. The evidence need only raise an inference of the truthfulness of the facts
admitted. The two incidents were close in time, occurring less than two months apart.
Of their own volition, both women in these separate instances went to a couch in
Appellant’s living room and fell asleep. Neither of them had a prior sexual relationship
with Appellant, nor did they ever indicate to Appellant that they were interested in one.
Nonetheless, in both instances he spontaneously woke them up from their apparent
slumber to suggest they go downstairs to sleep in a bedroom. He had access to both of
the victims in these separate instances when they were at his house, sleeping in an open
area. He also had opportunity to get them to move to an ostensibly more comfortable
sleeping arrangement by suggesting they go to sleep in a bed downstairs, instead of
sleeping on the couch. The striking similarities from the prior uncharged offense
provided independent evidence to corroborate Appellant’s statements as to how A1C AL
ended up in his bedroom.

                            Ineffective Assistance of Counsel

      Appellant contends if we find the corroboration issue was waived, his trial defense
counsel were ineffective for failing to seek suppression of Appellant’s admissions.
Finding Appellant’s pretrial admissions were sufficiently corroborated and properly
admitted, we likewise find Appellant has not met the high burden set forth by the
Supreme Court in this claim of ineffective assistance of counsel.

                                            8                                  ACM 38612
       In order for counsel’s ineffective performance to be a Sixth Amendment5
violation, Appellant must show that his trial defense counsel were deficient and the
deficiency prejudiced his defense. Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Counsel is deficient when his
representation falls “below an objective standard of reasonableness.” Id. (citing
Stickland, 466 U.S. at 688). Then to establish prejudice, Appellant must show there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 534 (quoting Stickland, 466
U.S. at 694) (internal quotation marks omitted).

       With regard to allegations of ineffective assistance of counsel, “the burden rests on
the accused to demonstrate a constitutional violation.” United States v. Cronic, 466 U.S.
648, 658 (1984). Consistent with this principle, our superior court has stated that,
“[w]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to
make a motion to suppress evidence, an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.” United States v. Jameson,
65 M.J. 160, 163–64 (C.A.A.F. 2007) (quoting United States v. McConnell, 55 M.J. 479,
482 (C.A.A.F. 2001)). We review such claims de novo.

        Trial defense counsel did not object to the admissibility of Appellant’s pretrial
statements, which was reasonable in light of the Government’s corroborating evidence
and the then-existing law on corroboration of confessions and admissions. The lack of an
objection did not fall “measurably below the performance standards ordinarily expected
of fallible lawyers.” United States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005). We note
that even under the current Adams standard on corroboration, Appellant’s admissions to
A1C AL would have been admissible for reasons stated above. Thus, there was not a
reasonable probability that a motion to suppress or objection would have succeeded,
making reasonable the trial defense counsel’s decision to not object to the admissibility
of Appellant’s statements.

                  Legal and Factual Sufficiency of Specification 1 of the Charge

       Lastly, Appellant argues the evidence is legally and factually insufficient for
Specification 1 of the Charge (sexual assault of A1C AL), because the Government failed
to prove Appellant knew or reasonably should have known A1C AL was impaired in
such a manner as to be incapable of consenting to the sexual act. We disagree.

       Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and
factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.

5
    U.S. CONST. amend. VI.



                                                9                                  ACM 38612
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 in the record of trial and making allowances for not having personally observed
the witnesses, [we] are [ourselves] convinced of the [appellant’s] guilt beyond a
reasonable doubt.” Turner, 25 M.J. at 325. Our appellate review “involves a fresh,
impartial look at the evidence,” contained in the “entire record without regard to the
findings reached by the trial court” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399.

       We find the evidence legally and factually sufficient to support Appellant’s
conviction of sexual assault of A1C AL by penetrating her vulva with his penis when she
was incapable of consenting due to impairment. The elements of that offense are:
(1) that the accused committed a sexual act upon a certain person, and (2) that the
accused did so when the alleged victim was incapable of consenting to the sexual act due
to impairment by a drug, intoxicant or other similar substance, and that condition was
known or reasonably should have been known to the accused. Manual for Courts-
Martial, United States, pt. IV, ¶ 45.a.(b)(3) (2012 ed.).

      Evaluating the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found the elements of the offense were established
beyond a reasonable doubt. The presence of A1C AL’s DNA mixed with Appellant’s
semen on his bed sheet, coinciding with Appellant’s admissions to his friend and to A1C
AL that he had sexual intercourse with A1C AL, is sufficient to establish Appellant
committed a sexual act upon A1C AL by penetrating her vulva with his penis.

       Regarding the second element of the offense, we find the evidence, when viewed
in the light most favorable to the prosecution, would support a reasonable factfinder’s
determination that Appellant committed the sexual act when A1C AL was incapable of
consenting due to impairment by alcohol consumption and her condition was known or
reasonably should have been known to Appellant.

       We discussed A1C AL’s impairment at length in the discussion above. There was
convincing evidence that A1C AL was in fact incapable of consent due to intoxication by
alcohol. She testified about the numerous alcoholic beverages she drank that night at the
bar, that she only had intermittent recall of events, and that one of her last memories of
the evening was walking up the stairs before waking up on the couch the next morning.
While most witnesses described her as sleeping, one described her as completely passed
out. Regardless of the characterization, the testimony is clear that her faculties were so
impaired that even after other party-goers threw “a lot” of ping pong balls at her “a
multiple number of times,” hitting her in the face and body, she only briefly became

                                            10                                   ACM 38612
responsive. She had no recollection of falling asleep on the couch, of Appellant taking
her to his bedroom, or of the sexual act.

        Because Appellant was not at the bar with A1C AL and their group of friends, it
would not be reasonable to infer that Appellant knew of the total number of drinks she
consumed or knew of her intoxicated condition prior to her arrival at his house.
However, the evidence showed there were clear, outward signs of A1C AL’s intoxication
after the group left the bar and met up with Appellant at his house. A1C AL and several
eyewitnesses testified as to A1C AL’s obvious intoxication at Appellant’s house. Their
friends observed A1C AL stumbling and slurring her words. Her body movements and
eyes indicated she was in a drunken state, and she was not even aware of the presence of
Ms. DM for some period of time, even though they were in the same room together. In
plain view of everyone at the party, A1C AL went to a couch in the living room and fell
asleep due to drunkenness. She remained passed out on the couch even as the party
continued on around her. Based on evidence that the partygoers were located within
view of each other in the open living room and kitchen area, it is reasonable to infer
Appellant observed A1C AL’s intoxicated condition, even if he was not specifically
aware of the numerous alcoholic beverages she had consumed at the bar.

       In fact, in Appellant’s own admissions, A1C AL was hanging off the couch in her
sleep when he told her to go sleep in his room. Then he had to correct her course,
because she walked in the wrong direction, and he guided her down the steep stairway to
his bedroom. Last, evidence that Appellant knew of A1C AL’s impaired condition was
written in his text message, when he wrote “[w]e were both really drunk.” While his own
state of intoxication may have led Appellant to confuse A1C AL’s intoxication for mere
sleepiness, his awareness of her intoxication is judged by an objective standard. An
ordinary, reasonable, prudent, and sober person, having observed her physical signs of
intoxication while awake and her lack of reaction to the ping pong balls while on the
couch, would have recognized her level of intoxication. The qualifier “really,” used by
Appellant to describe A1C AL’s level of intoxication, along with the other witnesses’
testimony on A1C AL’s apparently high level of intoxication, is sufficient to show that he
knew or should have known of A1C AL’s condition.

       After weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt beyond
a reasonable doubt.




                                            11                                  ACM 38612
                                       Conclusion

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



             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                            12                                  ACM 38612
