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

                                 Before
            F.D. MITCHELL, J.R. MCFARLANE, G.G. GERDING
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     MATTHEW D. ELLERBEE
              MASTER-AT-ARMS SEAMAN (E-3), U.S. NAVY

                           NMCCA 201300109
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 13 December 2012.
Military Judge: CDR L.T. Booker, Jr., JAGC, USN.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, Washington.
Staff Judge Advocate's Recommendation: CDR D.E. Rieke,
JAGC, USN.
For Appellant: Capt David A. Peters, USMC.
For Appellee: Maj Crista D. Kraics, USMC.           ,

                              31 July 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MITCHELL, Chief Judge:

     A military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of one
specification of aggravated sexual assault upon a substantially
incapacitated victim in violation of Article 120(c), Uniform
Code of Military Justice, 10 U.S.C. § 920(c). The appellant was
sentenced to confinement for 54 months, reduction to pay-grade
E-1, and a bad-conduct discharge. The convening authority
approved the adjudged sentence and ordered it executed. 1

     The appellant now alleges three assignments of error: (1)
that he was denied due process of the law due to the military
judge’s misunderstanding of the definition of substantial
incapacitation; (2) that Article 120(c) is unconstitutionally
vague as applied to the appellant; and (3) that the evidence
presented at trial was neither factually nor legally sufficient
to support the conviction for a violation of Article 120(c),
UCMJ.

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                Factual Summary

     On 17 March 2012, the appellant, Personnel Specialist
Second Class (PS2) KC, and some other Sailors attended a
farewell party at a tavern in Everett, Washington. PS2 KC and
the appellant were close friends outside of work and her then
boyfriend, Master-at-Arms Second Class (MA2) S 2, and the
appellant were best friends. At the tavern, PS2 KC had dinner
and later that evening, starting at around 2100, began to
consume alcohol. By the time PS2 KC left the tavern with the
appellant and a group of friends around 2300 she had consumed
two mixed drinks and a shot of liquor.

     During the course of the rest of the night and early into
the next morning, the appellant, PS2 KC, and three other Sailors
went to two other bars and continued to consume alcohol. During
the course of the outing, which ended at 0200 on 18 March, PS2
KC consumed approximately five mixed drinks and two shots of
liquor.

     MA2 B drove PS2 KC to her apartment that she shared with
her boyfriend. The appellant got out of the car and assisted
PS2 KC in walking to her apartment. MA2 S was in the apartment

1
  That portion of the convening authority’s action which purports to execute
the bad-conduct discharge is a nullity. United States v. Bailey, 68 M.J. 409
(C.A.A.F. 2009).
2
    At the time of trial, MA2 S was married to PS2 KC.


                                        2
and awoke to the noise of appellant and PS2 KC coming up the
stairs. He saw the appellant supporting PS2 KC’s entire body
weight as they made their way up the stairs. The appellant then
assisted MA2 S in putting PS2 KC into the bathroom by the
toilet; shortly afterwards they found her falling asleep on the
bathroom floor. MA2 S, with the assistance of the appellant,
put PS2 KC into bed. MA2 S then put a trashcan by the side of
the bed, along with water and tissues in case she got sick. MA2
S had to leave the apartment to go to work at around 0400 and
the appellant offered to stay with PS2 KC in case she got sick
and had to go to the hospital. The appellant disclosed to MA2 S
that PS2 KC had already been sick earlier that evening. MA2 S
then gave the appellant shorts to sleep in and set up the couch
so that he could sleep there.

     PS2 KC remembered being at the bar and being curled up on
the bathroom floor. The next thing she remembers is being in a
“dreamlike” state, being “flipped over,” and then being “touched
around [her] vagina area.” Record at 413. Although PS2 KC
testified she did not feel penile penetration, she could not be
sure whether or not she was penetrated. Id. at 414-15. It was
not until between 0400 and 0500 on 18 March 2012 that she was
awakened by the pain of her underwear being pulled up too high.
Id. at 416. At this point she “slowly started coming to” and
realized that she had been sexually assaulted by the appellant.
Id. at 417. She immediately began to search for her cell phone.
During this time the appellant was still in the apartment with
her and eventually gave her his phone so she could make a call.
PS2 KC called MA2 B and told him he needed to come over. MA2 B
talked to PS2 KC and then asked to speak to the appellant who
told him that PS2 KC was just drunk and that he was “taking care
of [her].” Id. at 420. After the phone call, PS2 KC asked
appellant to leave the room and it was at this point that she
located her phone and told MA2 B via text message that the
appellant had sexually assaulted her. Id. at 421; Prosecution
Exhibit 2.

     After receiving the text from PS2 KC, MA2 B left his
barracks and went to her apartment. PS2 KC was taken to the
Providence Regional Medical Center in Everett, Washington, to
undergo a sexual assault forensics examination (SAFE). In
addition to the SAFE, her blood was drawn at 0741 on 18 March
2012 and testing reflected a blood alcohol content (BAC) of
.143.

     Additional pertinent facts are provided as necessary to
discuss the appellant’s assignments of error.

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                       Due Process of Law

     In his first assignment of error, the appellant avers that
he was denied due process of law because the military judge did
not understand the definition of “substantially incapacitated”
and did not clearly articulate what definition he used in
deciding the appellant’s case.

     After being informed of his forum selection rights, the
appellant initially elected to be tried by officer members.
Following voir dire of the potential panel members, the defense
asked the military judge to strike the entire panel for cause
because they had all received Sexual Assault Prevention and
Response Leadership training mandated by the Chief of Naval
Operations. Record at 357. The military judge denied this
motion, but indicated that he would entertain any challenge for
cause the defense may have against individual potential members.
Id. at 358-59.   The appellant, through counsel, then asked the
military judge to change his forum selection to military judge
alone. After ensuring that the appellant understood the
ramifications of his request, the military judge granted it.

     During voir dire of the military judge, the trial counsel
questioned him as to what the Government would have to show to
prove that a person was substantially incapacitated beyond a
reasonable doubt:

     TC: Do you believe that for someone to be substan- or
     for a person to be substantially incapacitated, as
     defined by Article 120 pre-June 2012, that they have
     to be in a medical coma?

     MJ: (Laughing) I don’t believe I’ve read any cases
     that say that substantially incapacitated is so
     rigidly defined, and when I instruct myself, I will
     certainly not instruct myself to that extent.

     TC: Do you think it’s possible for the government to
     prove substantial incapacity beyond a reasonable doubt
     at an Article 120 trial?

     MJ:   Yes.

Id. at 370.

     The Government subsequently challenged the military judge
for cause averring that he “demonstrated [an] inflexible

                                4
judicial temperament to the statute that is charged in this
case.” Id. at 371. In response to trial counsel’s challenge of
the military judge, trial defense counsel stated:

      I think the court has demonstrated impartiality and an
      ability to make reasoned, impartial decision, and I -
      - I don’t believe the court, has made any statement
      today on the record, either to the panel or in the
      absence of the panel in Article 39(a) or 802 that
      would lead an appellate court to conclude that Your
      Honor has an inflexible predisposition with regards to
      Article 120.

Id. at 373.

The military judge denied the government’s motion to remove
himself as military judge and commented:

      All that’s my way of saying that I come into this case
      as a blank slate . . . . And with respect to the
      other challenges, I will interpret the statute to the
      best of my ability. I do not have any preconceived
      notions on what any of those terms mean. I invite
      parties to argue what the terms mean, and inform me
      what the terms mean when I get to the point of my
      receiving argument.
              3
Id. at 377.

     After receiving evidence from both sides and before hearing
closing arguments, the military judge invited the trial counsel
and the defense team to elaborate on their understanding of the
definition of the “substantially incapacitated” element:


3
  The military judge had previously commented on the current state of Article
120, UCMJ: “I think it is fair comment on the statute itself because
reported decisions of the United States Court of Criminal Appeals for the
Armed Forces have said so, perhaps not in so many words, but certainly they
have noted the confusing entanglement of statutory definitions and elements,
and perhaps burdens unconstitutionally placed on the defense in the
prosecution of Article 120 cases . . . . [T]he revisions to Article 120 were
reasonably swift, they were reasonably comprehensive; Article 120 has now
been split into three or four different statutes in addition to the
subsections of the new - new Article 120, which may reflect some of the
difficulties that the trial and appellate courts, and the practitioners in
the trial and appellate courts had in defining the intent of congress, the
meaning of the statutes. I think, therefore, there is a fair comment that
the statutory definitions are somewhat confusing and are still somewhat at
issue . . . .” Record at 374-75.
                                      5
          It would be particularly helpful for me and this
     is why we’re making it a little bit longer break, if
     you all could educate me as to what “substantially
     incapacitated” means. Does it mean substantially like
     on the way to being incapacitated? For example, you
     say that you were in substantial compliance with a
     regulation, that means that you’re pretty much in
     compliance or does it mean, incapacitated to a pretty
     large degree? That is one issue that I think we need
     to have argument on during your closings. But feel
     free to craft your closing as best it fits your view
     of the evidence . . . .

Record at 857-58.

     The appellant now avers that the above statement
demonstrates that the military judge did not understand the
definition of “substantially incapacitated.” The appellant also
contends that since the military judge did not specifically
articulate on the record what definition he chose to apply when
he reached his verdict, this court cannot “be certain, beyond a
reasonable doubt, that the military judge applied an appropriate
legal standard in determining substantial incapacity.”
Appellant’s Brief of 1 Aug 2013 at 23-24. We disagree with both
contentions.

     Military judges are presumed to know the law and follow it
absent clear evidence to the contrary. United States v.
Erikson, 65 M.J. 221, 225 (C.A.A.F. 2007). An appellant carries
the burden to produce evidence rebutting the presumption that
the military judge properly applied the law. Id.

     After hearing all the evidence and arguments presented by
both sides, the military judge found the appellant guilty of the
sexual assault as alleged in the specification. The military
judge entered special findings on the record to address the
issue of substantial incapacitation as applied to the sole
specification in which he found the appellant guilty:

     I am satisfied beyond a reasonable doubt that Petty
     Officer [KC] was substantially incapacitated at the
     time of the sexual act. The observations by those who
     know her well – Petty Officer [S], Petty Officer [B] –
     and the technical evidence have convinced me that
     Petty Officer [KC] was incapacitated, that is, unable
     to exercise control over her physical and mental


                                6
     faculties, and that this incapacitation was to a
     substantial, perhaps even severe, degree.

Record 899.

     We disagree with the appellant’s assertions that the
military judge’s invitation to counsel for each side to
“educate” him on the definition of substantial incapacitation
was an indication that he did not know the law. Quite to the
contrary, after finding the appellant guilty of sexual assault,
the military judge articulated on the record what he considered
in finding the appellant guilty, specifically addressing the
element of substantial incapacitation. We find no evidence in
the record to suggest that the military judge did not understand
or apply the correct rule of law. We therefore find that the
appellant has not met his burden to produce evidence rebutting
the presumption that the military judge did not properly apply
the law. Erickson, 65 M.J. at 225. Accordingly, we find this
assignment of error to be without merit.

      Constitutional Challenge to Article 120(c) as Applied

     In his second assignment of error, the appellant contends
that the element of “substantial incapacitation” is
unconstitutionally vague as applied to him. He further contends
that the statute, Article 120(c), offends the appellant’s Fifth
Amendment rights.

     A basic principle of due process requires “fair notice”
that an act is subject to criminal sanction and the standard
that is applicable to the forbidden conduct. United States v.
Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003). A law is “void for
vagueness” if “‘one could not reasonably understand that his
contemplated conduct is proscribed.’” Id. (quoting Parker v.
Levy, 417 U.S. 733, 757 (1974)). The sufficiency of statutory
notice is determined in the light of the conduct with which a
defendant is charged. Levy, 417 U.S. at 757. “Criminal
statutes are presumed constitutionally valid, and the party
attacking the constitutionality of a statute has the burden of
proving otherwise.” United States v. Mansfield, 33 M.J. 972,
989 (A.F.C.M.R. 1991) (citation omitted).

     We review whether a statute is unconstitutional as applied
de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F.
2012). At trial, the appellant did not object to the



                                7
constitutionality of Article 120(c), as applied to his case. 4
Since the error the appellant is alleging is constitutional, and
in light of the Court of Appeals for the Armed Forces (CAAF)
presumption against waiver of constitutional rights and the
requirement that waiver “‘clearly establish . . . an intentional
relinquishment of a known right or privilege,’” we consider the
alleged error forfeited and not waived. United States v.
Sweeney, 70 M.J. 296, 303-04 (C.A.A.F. 2011) (quoting United
States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008)). We
therefore test for plain error. Id. at 304

     Under plain error review, we will grant relief only where
(1) there was error, (2) the error was plain and obvious, and
(3) the error materially prejudiced a substantial right of the
accused. Sweeney, 70 M.J. at 304. To determine if “a statute
is ‘unconstitutional as applied,’ we conduct a fact-specific
inquiry.” Id.

     The appellant was charged with violating Article 120, UCMJ,
specifically alleging he had sexual intercourse with PS2 KC, who
was substantially incapacitated. Aggravated sexual assault,
under Article 120(c), is committed when a person “engages in a
sexual act with another person of any age if that other 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.” The appellant now
alleges that Article 120(c) is unconstitutionally vague as
applied because, as articulated by the military judge,
“substantial incapacity” has no discernable legal standard or
definition. Appellant’s Brief at 27-28. The appellant
additionally argues that since the military judge indicated that
the statute was confusing, it is unreasonable to expect an
individual of ordinary intelligence, such as the appellant, to
have sufficient notice of the statute’s prohibitions.
Appellant’s Brief at 31. We disagree.

      In a case where an individual is clearly put on notice of
the illegality of his actions, he is not permitted to attack the
statute for vagueness merely because the language of the statute

4
  The appellant argues that, although not specifically articulated as a
constitutional challenge, trial defense counsel did argue that the statute,
as written, was too vague to form the basis for criminal liability. Record
at 873, 884, see also Appellate Exhibit XXV. We do not find that the trial
defense counsel’s comments on the record (Record at 873, 884) and response to
the military judge’s proposed instructions (AE XXV) rose to the level of an
as-applied constitutional objection on the record.
                                      8
may “not give similar fair warning with respect to other conduct
which might be within its broad and literal ambit.” Levy, 417
U.S. at 756. Simply put, “[o]ne to whose conduct a statute
clearly applies may not successfully challenge it for
vagueness.” Id.

     On the facts of this case, the appellant had ample notice
of the incapacitation of PS2 KC and therefore the illegality of
his conduct. PS2 KC was unable to carry herself up the stairs -
the appellant had to support her entire body weight to assist
her up the stairs. The appellant had to aid MA2 S in putting
PS2 KC into the bathroom and later into bed. Moreover, the
appellant offered to stay with PS2 KC in case she again became
sick or needed medical attention. Whatever vagueness may exist
in the reach of the legal definition of substantial
incapacitation, it is clear that PS2 KC was well within its
defined meaning. We find that the appellant had adequate notice
that Article 120(c) applied to his conduct with PS2 KC.
Accordingly, we conclude that this assignment of error is
without merit.

                   Legal and Factual Sufficiency

     Finally, the appellant alleges that the facts presented in
this case are legally and factually insufficient to sustain
appellant’s conviction for violating Article 120(c).

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559, 561-62
(N.M.Ct.Crim.App. 1999), aff’d, 54 M.J. 37 (C.A.A.F. 2000); see
also Art. 66(c), UCMJ. The test for factual sufficiency is
whether, after weighing all the evidence in the record of trial
and recognizing that we did not see or hear the witnesses, this
court is convinced of the appellant’s guilty beyond a reasonable
doubt. Turner, 25 M.J. at 325; see also Art. 66(c), UCMJ.

     There are two elements to the offense of aggravated sexual
assault that the Government was required to prove beyond a
reasonable doubt: (1) that the accused engaged in a sexual act
with PS2 KC; and (2) that PS2 KC was substantially
incapacitated. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Appendix 28, ¶ 45b(3)(c). Although PS2 KC testified that she
did not recall the appellant penetrating her vagina with his

                                  9
penis, there is little dispute, if any, as to whether the
appellant engaged in a sex act with PS2 KC. The evidence
adduced at trial, to include the results of the SAFE, revealed
the presence of semen in and around PS2 KC’s vagina which
matched the deoxyribonucleic acid (DNA) of the appellant. The
only element in issue is whether PS2 KC was substantially
incapacitated.

     When PS2 KC arrived home, she had to be assisted by the
appellant in getting to her apartment. MA2 S stated that when
he saw the appellant and PS2 KC walking up the stairs to their
apartment, the appellant was supporting all of PS2 KC’s body
weight. He further indicated that when PS2 KC came into their
apartment, her speech was slurred and her ability to walk and
remain coherent was diminishing. The appellant himself
expressed concern as to PS2 KC’s condition while he was helping
MA2 S put her to bed stating that he would stay with PS2 KC
while MA2 S went to work in case she got sick again or needed to
go to the hospital. PS2 KC described her memory as “hazy” and
the feeling like she was in a “dreamlike” state during the
sexual assault and only became coherent when she experienced the
pain of her underwear being pulled up too high.

     The Government also presented evidence that PS2 KC’s blood
alcohol content (BAC) at 0741 when she provided a blood sample
was .143. Through back extrapolation the Government’s expert
was able to determine that her BAC at 0410, the time of the
sexual assault, would have been .195 or slightly above. Record
at 679. The expert further opined that at this stage of
intoxication the individual would be in a confused state and
disoriented. Id. at 682.

     After thoroughly reviewing all of the evidence, we find
that the military judge had a factual basis to find the
appellant guilty beyond a reasonable doubt of aggravated sexual
assault. Taking into consideration that we did not see the
witnesses personally, we find the evidence both legally and
factually sufficient to find the appellant guilty beyond a
reasonable doubt of the charge and specification of which he was
convicted at trial. Accordingly, we find this assignment of
error to be without merit.




                               10
                           Conclusion

     The finding and the sentence as approved by the CA are
affirmed.

     Senior Judge MCFARLANE and Judge GERDING concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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