         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600331
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                        GERARDO R. GOMEZ
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

            Military Judge: Major M.D. Sameit,USMC.
 Convening Authority: Commanding General, 1st Marine Division
                   (REIN), Camp Pendleton, CA.
   Staff Judge Advocate’s Recommendation: Major M.J. Stewart,
                               USMC.
 For Appellant: Lieutenant Commander William L. Geraty, JAGC,
                                USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
 USN; Lieutenant Commander Justin C. Henderson, JAGC, USN.
                      _________________________

                           Decided 4 April 2018
                         _________________________

  Before HUTCHISON, PRICE, and F ULTON , Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                         _________________________
   PRICE, Judge:
   Officer and enlisted members sitting as a general court-martial convicted
the appellant, contrary to his pleas, of one specification of violation of a
lawful general order, three specifications of sexual assault, and one
specification of abusive sexual contact, in violation of Articles 92 and 120,
                    United States v. Gomez, No. 201600331


Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920.1 The
members sentenced the appellant to five years’ confinement, reduction to pay
grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
The convening authority (CA) approved the sentence as adjudged and, except
for the dishonorable discharge, ordered it executed.
    The appellant raises seven assignments of error (AOEs): (1) the
government violated his due process right to notice when it charged him with
sexual assault under a bodily harm theory, but convicted him under an
incapable of consenting due to impairment by alcohol theory; (2) the term
incompetent as applied at trial was unconstitutionally vague; (3) the military
judge abused his discretion by admitting evidence of the alleged victim’s
alcohol consumption; (4) the military judge abused his discretion by
instructing the members on the alleged victim’s competence and capacity to
consent, after ruling that competence and capacity were not at issue, denying
the appellant a fair trial; (5) the military judge erred by declining to provide a
defense-requested instruction addressing the alleged victim’s capacity to
consent and the relevance of her intoxication; (6) the military judge
improperly instructed the members on the alleged victim’s competence and
capacity to consent; and (7) the evidence is legally and factually insufficient
to prove any violation of Article 120, UCMJ.
    Having carefully considered the record of trial, the parties’ submissions,
and oral argument, we conclude the findings and sentence are correct in law
and fact and find no error materially prejudicial to the appellant’s substantial
rights.2 Arts. 59(a) and 66(c), UCMJ.
                                I. BACKGROUND
    RMR, a civilian, was staying with a friend, Mrs. U, and her husband LCpl
U, near Camp Pendleton, California. When RMR found herself locked out of
the Us’ apartment she contacted the appellant, whom she knew through
social media but had never met in person. The appellant picked up RMR and
drove her onboard Camp Pendleton where they spent several hours together,
first talking in his barracks room and later socializing with a group of
Marines. The appellant asked RMR to spend the night with him, but she
declined.



   1 Following announcement of the findings, the military judge ruled specifications
2-4 of Charge II constituted an unreasonable multiplication of charges and merged
those specifications for findings and sentencing. Record at 548-50.
   2 We heard oral argument in this case on 31 October 2017 at the Georgetown
University Law Center as part of our Outreach program.




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                       United States v. Gomez, No. 201600331


   At approximately 1800, the appellant drove RMR to the Us’ apartment
and left to meet some friends. Over the next several hours, RMR and Mrs. U
consumed half a bottle of vodka, and RMR also drank one beer. Between 2016
and 2335 the appellant and RMR exchanged over 100 text messages. During
the text conversation RMR agreed to spend the night with the appellant in
his barracks room and said she was “[t]rying to get somewhat drunk but
[kept] losing [her] drunk vibe.”3 After consuming the vodka and beer, RMR
exhibited signs of alcohol impairment and vomited in the Us’ bathroom.
    While the appellant was enroute to the Us’ apartment, Mrs. U sent a text
to the appellant telling him that RMR was drunk and impatiently awaiting
his arrival. LCpl and Mrs. U told RMR it was a bad idea for her to leave the
apartment, but RMR insisted that she was fine and that she wanted to go
with the appellant. LCpl U testified that RMR decided on her own to leave
with the appellant. When the appellant arrived at the Us’ apartment shortly
after midnight, Mrs. U helped RMR walk to his car, and LCpl U informed the
appellant that RMR was pretty drunk.
   The appellant drove RMR to his barracks, stopping several times along
the way so she could vomit or spit. Due to her physical state, the appellant
carried RMR from his car to his barracks room. RMR felt sick and went into
the appellant’s bathroom and laid on the floor and toilet. The appellant told
RMR, “we’re dudes—we pee everywhere[,]” and she responded that she did
not care because she needed to throw up.4 RMR then vomited in the
appellant’s toilet. The appellant told RMR she could not lie in his bed
smelling like “throw-up,” and encouraged her to take a shower.5
    RMR testified that she was an inexperienced drinker and had limited
recall of events after drinking at the Us’ apartment. RMR’s inability to
remember the evening’s events was consistent with alcohol-induced blackout
as described by expert witnesses. She did not recall the content of many of
the texts she exchanged with the appellant including her agreement to stay
in his room or coordinating her pick-up from the Us’ apartment because of
her self-described intoxication. She also did not recall the circumstances
surrounding her departure from the Us’ apartment or how she got to the
appellant’s barracks room. She remembered vomiting into the appellant’s
toilet and recalled him saying “that [her] friend told him to shower me,”




   3   Prosecution Exhibit (PE) 4 at 9.
   4   PE 12.
   5   Id.




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                          United States v. Gomez, No. 201600331


which caused her to think something “wasn’t right” because she had
showered a few hours earlier.6
    RMR also remembered being in the appellant’s shower, seeing her feet
while “bent over,” with the appellant behind her “having sex with [her].”7 She
testified she experienced difficulty moving and speaking but nudged or
elbowed the appellant several times in an effort to get him to stop, and then
told him “no.”8 She also recalled being “laid down on [her] side,” and feeling
the appellant’s fingers and then his penis inside her vagina.9 She testified
that she “tried to get him to stop . . . with [her] arm again, tried to nudge, and
then . . . after making a couple noises, like ‘Uh-uh’ . . . implying no, [she]
finally said, ‘No.’”10 She did not recall if he stopped after she said no but
assumed he did.
    While driving RMR back to the Us’ apartment the next morning, the
appellant said he wished he had “made better decisions that night.”11 RMR
told Mrs. U that she had been sexually assaulted and reported the alleged
offenses to the Naval Criminal Investigative Service (NCIS).
   In cooperation with NCIS special agents, RMR engaged in a text-message
conversation with the appellant. The appellant expressed regret throughout
the conversation, texting, “I’m so sorry of [sic] what happened that night,”
and “I’m sorry for having sex with you.”12 Later, in a phone conversation
recorded by NCIS, the appellant again expressed regret to RMR, described
how intoxicated she was, and admitted he had sex with her in the shower and
on the bed. He also informed RMR he had performed oral sex on her, wore a
condom only during sexual intercourse in the shower, and that he ejaculated
while not wearing a condom. RMR had not recalled or reported the oral sex
and did not know if the appellant had worn a condom or ejaculated.
    The appellant was arraigned on eight sexual offenses, which essentially
alleged the same four acts of sexual misconduct under two different theories
of liability—incapability to consent due to impairment by alcohol and bodily
harm. He was charged with three specifications of sexual assault in violation


   6   Record at 194.
   7   Id.
   8   Id. at 195-97.
   9   Id. at 198.
   10   Id. at 199-200.
   11   Id. at 203.
   12   PE 3.




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                        United States v. Gomez, No. 201600331


of Article 120(b)(3)(A) (penetration of RMR’s vulva on three separate
occasions when she was incapable of consenting due to impairment by
alcohol), three specifications of sexual assault in violation of Article
120(b)(1)(B), UCMJ (penetration of RMR’s vulva on three separate occasions
by causing bodily harm), and two specifications of abusive sexual contact in
violation of Article 120(d) (by placing his mouth on her vulva when she was
incapable of consenting due to impairment by alcohol and by placing his
mouth on her vulva, by causing bodily harm).13
    Before the appellant entered pleas, the government withdrew and
dismissed the four incapacity specifications. At an ensuing Article 39(a),
UCMJ, hearing, the military judge questioned the trial counsel (TC) about
the relevance of evidence of RMR’s alcohol consumption. The TC responded
that RMR’s “level of intoxication is relevant to the matter of consent; not her
capacity to consent, but whether or not she, in fact, did consent” to the three
incidences of penetration.14 With respect to the aggravated sexual contact
offense, RMR had no independent recollection of the appellant placing his
mouth on her vulva. Thus the TC asserted that there was “potential to argue
that [RMR] did not have capacity [to consent] and she was not competent for
that sexual contact.”15
   The trial defense counsel (TDC) argued that RMR’s actions demonstrated
that she had the capacity to consent since she expressed a lack of consent
through physical actions and by verbally saying “No.”16 He then expressed
concern that evidence of RMR’s lack of memory “opens the door to capacity
now becoming an argument” and that such an argument might mislead the
members or cause them to conclude that RMR did not “have the capacity to
consent.”17 The TDC then argued that the government should be precluded
from arguing competence and capacity.
    Based on the TDC’s concerns, the military judge substantially limited the
TC’s ability to argue that RMR did not have the capacity to consent. The
military judge acknowledged that RMR’s alcohol use was relevant to the
issue of consent. But he reasoned that since the government would seek to
prove that the appellant committed bodily harm in order to sexually assault
RMR, and because the government had dismissed the specifications alleging


   13   Charge Sheet.
   14   Record at 36.
   15   Id. at 36-37.
   16   Id. at 37-38.
   17   Id. at 38.




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                        United States v. Gomez, No. 201600331


that RMR was incapable of consenting due to alcohol, he “d[id] not find that
competence and capacity [wa]s in issue” based upon the parties’ proffers and
the exhibits he had examined.
   The military judge directed the government to “limit [its] argument to
whether or not this was by bodily harm” and precluded argument “that
[RMR] was not competent in this case.”18 In response to a question from the
TC, the military judge clarified that they were not to argue RMR lacked
capacity but could argue all the surrounding circumstances.
   The defense theory at trial was that RMR was competent to engage in
sexual activity and that she either consented to the alleged sexual activity or,
as the result of a reasonable mistake of fact, the appellant believed she
consented to the sexual activity.
   Additional facts necessary to resolution of the AOEs are included below.
                                    II. DISCUSSION
A. Due Process and notice
   The appellant argues that his Due Process rights were violated when he
was “convict[ed] of an offense that was different from the charged offense.”19
   1. Law
    The Due Process Clause of the Fifth Amendment “requires ‘fair notice’
that an act is forbidden and subject to criminal sanction” before a person can
be prosecuted for committing that act. United States v. Vaughan, 58 M.J. 29,
31 (C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F.
1998)). “The due process principle of fair notice mandates that an accused has
a right to know what offense and under what legal theory he will be
convicted.” United States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013) (citing
United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (internal quotation
marks and citation omitted)). ‘“[T]he Due Process Clause of the Fifth
Amendment also does not permit convicting an accused of an offense with
which he has not been charged.”’ Id. (quoting United States v. Girouard, 70
M.J. 5, 10 (C.A.A.F. 2011)) (alteration in original).
   2. Analysis
    The appellant argues he was charged with sexual assault and abusive
sexual contact alleging bodily harm but prosecuted and convicted of those
offenses under a different legal theory––that the putative victim was


   18   Id. at 38-39.
   19   Appellant’s Brief of 31 Mar 2017 at 17.




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                     United States v. Gomez, No. 201600331


incapable of consenting due to impairment by alcohol. He asserts this
violated his due process right to know what offense and legal theory of
liability he had to defend against. We disagree and conclude the appellant
was convicted of the offenses of which he was charged.20
   First, the appellant was informed of the sexual offenses charged and the
applicable legal theory—bodily harm—and then convicted of those offenses.
Tunstall, 72 M.J. at 192.
    He was charged with three specifications of violating Article 120(b)(1)(B),
UCMJ—sexual assault by causing bodily harm—and one specification of
violating Article 120(d), UCMJ—abusive sexual contact by causing bodily
harm.
    The sexual assault specifications alleged he penetrated RMR’s vulva on
two occasions with his penis and once with his finger “without her consent, by
causing bodily harm to her, to wit: an offensive touching however slight.”21
The abusive sexual contact specification alleged he “plac[ed] his mouth on
[RMR’s] vulva, without her consent, by causing bodily harm to her, to wit: an
offensive touching however slight.”22
    Bodily harm is a defined term in the relevant punitive article, and it put
the appellant on notice that the government would have to prove lack of
consent;23 that consent “means a freely given agreement to the conduct at
issue by a competent person[;]”24 and that “[a]ll the surrounding

   20 See generally United States v. Motsenbocker, No. 201600285, 2017 CCA LEXIS
539 at *19-23 (N-M.Ct.Crim.App. 10 Aug 2017) (we found no merit in the appellant's
argument that he was not on notice of what “he was required to defend against"
where the government charged sexual assault by causing bodily harm and abusive
sexual contact by causing bodily harm in violation of Articles 120(b)(1)(B) and 120(d),
UCMJ), rev. denied, __ M.J. __, 2018 CAAF LEXIS 539 (C.A.A.F. Feb. 13, 2018).
   21 Charge Sheet. Article 120(b)(1)(B), UCMJ, states “[a]ny person . . .who . . . (1)
commits a sexual act upon another person by . . . (B) causing bodily harm to that
other person . . . is guilty of sexual assault[.]”
   22 Charge Sheet. Article 120(d), UCMJ, states “[a]ny person . . .who commits or
causes sexual contact upon another person, if to do so would violate subsection (b)
(sexual assault) had the sexual contact been a sexual act is guilty of abusive sexual
contact[.]”
   23  Bodily harm means “any offensive touching of another, however slight,
including any nonconsensual sexual act or nonconsensual sexual contact.” Art.
120(g)(3), UCMJ.
   24 Art. 120(g)(8)(A), UCMJ. Consent means a freely given agreement to the
conduct at issue by a competent person. An expression of lack of consent through
words or conduct means there is no consent. Lack of verbal or physical resistance or



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                         United States v. Gomez, No. 201600331


circumstances are to be considered in determining whether a person gave
consent[.]”25 The specifications, therefore, provided the appellant notice that
RMR’s consumption of alcohol and level of intoxication were potentially
relevant as “surrounding circumstances” in the court’s determination of
whether RMR consented to the sexual conduct in issue. In fact, prior to
commencement of trial on the merits, the military judge explicitly (and
correctly) found that “evidence that [RMR] was drinking is part of those
surrounding circumstances and should be allowed in on the issue of
consent.”26
    The statutory definition of consent as “a freely given agreement to the
conduct at issue by a competent person” provides notice that when the “bodily
harm” alleged is the sexual act or contact, as in this case, the victim’s
“competence” is at issue.27 The plain language of the statute provided the
appellant fair notice of the offense and legal theory under which he was
convicted. See United States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017)
(“[C]ourts must presume that a legislature says in a statute what it means
and means in a statute what it says there. When the words of a statute are
unambiguous, then, this first cannon [of statutory interpretation] is also the
last: judicial inquiry is complete.”) (citation and internal quotation marks
omitted).
   Second, the appellant’s argument that he was prosecuted under a legal
theory that RMR was incapable of consenting due to impairment by alcohol is
unsupported by the record.
    The military judge precluded the TC from arguing incapacity, and the TC
complied throughout the trial. The TC mentioned a “competent person” only
once in his closing argument when he paraphrased the military judge’s
instruction and then immediately detailed the factual bases for determining
that RMR did not consent to the sexual conduct. Rather than focus on RMR’s
ability—or lack of ability—to consent, he highlighted RMR’s physical and
verbal resistance: “We have physical resistance. We have a verbal, No, in this
case. This is important.”28 Consistent with the military judge’s limitation, the

submission resulting from the use of force, threat of force, or placing another person
in fear does not constitute consent. A current or previous dating or social or sexual
relationship by itself or the manner of dress of the person involved with the accused
in the conduct at issue shall not constitute consent.
   25   Art. 120(g)(8)(C), UCMJ (emphasis added).
   26   Record at 38.
   27   Art. 120(g)(8)(A), UCMJ.
   28   Record at 511.



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                         United States v. Gomez, No. 201600331


TC also discussed the circumstances surrounding RMR’s refusal to consent.
RMR was intoxicated, sick, and had difficulty moving and speaking. But he
did not argue that RMR was incapable of consenting due to alcohol
intoxication. He closed his argument with “There was never that agreement.
She told him, No.”29
   The only explicit reference to RMR’s capacity, in argument, came from the
TDC. In his opening the TDC stated: “And before I sit down, I want to
emphasize this is not about capacity. As a matter of law and fact, the
complaining witness was capable of consenting. [The appellant] had a
reasonable mistake based on all of the evidence that the complaining witness
consented to sex.”30
   In closing, the TDC argued:
             Make no mistake members, [RMR is] not too drunk. That is
         not [an] issue before you. It’s not – [an] issue. . . . it is not an
         element of the charges. . . . Don’t be distracted by this red
         herring for one minute to think that the complaining witness
         lacked the capacity to participate in a sexual encounter that
         took place that night.31
   The appellant contends the limited evidence almost certainly means his
abusive sexual contact conviction was based upon an incapacity theory and
that there is a “substantial possibility” he was also convicted of the three
sexual assaults under this same incapacity theory.32 We disagree.
    The limited evidence of which the appellant speaks is his admission to
performing oral sex on RMR. His spontaneous, recorded admission was both
credible and direct evidence this sexual contact occurred. In response to
RMR’s questions regarding what happened that night, the appellant
admitted he did some “pretty crazy things like [placing his mouth on her
vulva].”33 After RMR expressed shock and disgust the appellant commented
“you weren’t the one doing it.”34 Significantly, the appellant did not claim or
even imply RMR consented to the oral sex. Having listened to the recording of
this exchange ourselves, we believe it likely that this evidence resonated with


   29   Id. at 512.
   30   Id. at 175-76.
   31   Id. at 516.
   32   Appellant’s Brief at 18-19.
   33   PE 12.
   34   Id.




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                        United States v. Gomez, No. 201600331


the members, particularly in light of the appellant’s tone and self-absorbed
focus on his thoughts, physical and sexual actions driven by his sexual
desires, and the absence of any mention of RMR’s consent or active
participation in the sexual conduct. The effect of this evidence was
undoubtedly amplified by the appellant’s later remorse.
   We likewise find the appellant’s argument that the abusive sexual contact
conviction raised a substantial possibility that he was also convicted of the
three sexual assaults under this same incapacity theory to be contrary to the
weight of the evidence.
    Third, we are unpersuaded by the appellant’s assertion that “when
viewed together with the other enumerated theories of liability” within
Article 120, UCMJ, “the bodily harm theory of liability is more simply
understood as applying to situations where a lack of consent can be shown by
words, conduct, or circumstances not amounting to incompetence.”35 He
argues the bodily harm theory of criminal liability “could be construed to
encompass all theories of sexual assault since all types of sexual assault
involve a lack of consent, i.e., a ‘bodily harm’” and argued his more narrowed
interpretation “produces the greatest harmony and . . . the least
inconsistency.”36 The appellant’s premise is flawed. “Lack of consent” is not
an element in all sexual assaults under Article 120(b), UCMJ.37
   Fourth, “the manner in which the case was contested diminishes any
argument that Appellant was not on notice as to what he had to defend
against.” United States v. Oliver, 76 M.J. 271, 275 (C.A.A.F. 2017). The
appellant’s trial strategy focused on RMR’s pre-sexual encounter behavior,
memory gaps and discrepancies attributable to alcohol intoxication, the


    35   Appellant’s Brief at 22.
    36   Id.
    37 See United States v. Riggins, 75 M.J. 78, 84 (C.A.A.F. 2016) (“[l]ack of verbal
or physical resistance or submission resulting from . . . placing another person in fear
[necessary to prove violation of Article 120(b)(1)(A)] does not constitute consent. . . .
the fact that the Government was required to prove a set of facts that resulted in [the
victim’s] legal inability to consent was not the equivalent of the Government bearing
the affirmative responsibility to prove [the victim] did not, in fact, consent“)
(alteration in original) (citation, internal quotation marks, and footnote omitted). See
also Military Judges' Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3-45-14 at 577,
Note 9 (10 Sep 2014) (“Evidence of consent. Generally, the elements of an Article
120(b) offense require the accused to have committed sexual conduct “by” a certain
method . . . . Accordingly, evidence that the alleged victim consented to the sexual
conduct may be relevant to negate an element, even though lack of consent may not
be a separate element.”).




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                         United States v. Gomez, No. 201600331


potential for her unintentional memory creation, and, alternatively, the
appellant’s alleged mistake of fact as to consent. Like the appellant in Oliver,
the appellant cannot argue he was not on notice that the victim’s competence
was at issue in the case. Id. (“Whether abusive sexual contact or wrongful
sexual contact, Appellant knew which part of the body he was alleged to have
wrongfully touched [as] his theory throughout the court-martial was
[consent]”); see also Tunstall, 72 M.J. at 197 (no prejudice where accused
actually defended against both theories in the terminal element of Article
134, UCMJ).
    The TDC was aware of the distinction among lack of consent, competence,
and capacity. That he convinced the military judge to preclude the
government from arguing capacity and competency with respect to the
abusive sexual contact offense—an offense RMR could not even recall—
further erodes his claim that he lacked notice. The TDC disclosed his
awareness of these key distinctions in this colloquy while discussing
instructions:
            MJ: So you knew the whole time that I was going to be
         reading the law and the definition of consent, that only a
         competent person could give consent.
             DC: We would agree, Your Honor. I don't know how that
         changes our detrimental reliance on the government’s position
         at the beginning of the case though.38
    The TDC was aware that the government was required to prove lack of
consent beyond a reasonable doubt and that “all the surrounding
circumstances [we]re to be considered in determining whether [RMR] gave
consent[.]” Art. 120(g)(8)(C), UCMJ. He was also aware that RMR’s alcohol
consumption was a key surrounding circumstance and recognized that her
competence was implicated by the relevant statutory definitions.
    We are satisfied that the appellant received the requisite due-process
notice of the elements he was required to defend against at trial. The
specifications alleged nonconsensual sexual acts—insertion of his penis or
fingers into RMR’s vulva—and nonconsensual sexual contact—placing his
mouth on RMR’s vulva. The appellant received “fair notice” and knew both
the offense and under what legal theory he was tried and convicted. Tunstall,
72 M.J. at 192.




   38   Record at 413.




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                    United States v. Gomez, No. 201600331


B. Instructions
    The appellant asserts three separate instructional errors by the military
judge. First, the military judge erred by declining to provide a defense-
requested instruction addressing RMR’s capacity to consent and the
relevance of her intoxication. Second, the military judge abused his discretion
by instructing the members on RMR’s competence and capacity to consent,
after ruling that competence and capacity were not an issue, denying the
appellant a fair trial. Third, the military judge improperly instructed the
members on RMR’s competence and capacity to consent. We disagree.
   1. Defense-requested instruction
    The appellant argues that the novel instruction his counsel requested at
trial was correct and necessary, and the military judge erred by refusing to
give it.
   a. Law
    “While counsel may request specific instructions . . . the [military] judge
has substantial discretionary power in deciding on the instructions to give.”
United States v. Carruthers, 64 M.J. 340, 345 (C.A.A.F. 2007) (quoting United
States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (additional
citations omitted)). “[A] military judge’s denial of a requested instruction is
reviewed for abuse of discretion.” Id. at 345-46 (citations omitted). ‘“We apply
a three-pronged test to determine whether the failure to give a requested
instruction is error: (1) [the requested instruction] is correct; (2) it is not
substantially covered in the main [instruction]; and (3) it is on such a vital
point in the case that the failure to give it deprived [the accused] of a defense
or seriously impaired its effective presentation.”’ Id. at 346 (quoting United
States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003) (additional citation and internal
quotation marks omitted) (alterations in original)). “All three prongs must be
satisfied for there to be error.” United States v. Bailey, 77 M.J. 11, 14
(C.A.A.F. 2017) (citation omitted).
   b. Analysis
   The TDC requested the military judge instruct the members that:
          [T]he question of [RMR’s] capacity to consent is not before
       you. Put another way the government concedes that [RMR] had
       the capacity to consent despite her possible intoxication.
           Persons who have consumed an intoxicant, such as alcohol,
       often exercise free will and make conscious decisions for which
       they are legally responsible. This is true even if the person does
       not later recall making the decision or if they later regret the
       decision. . . .


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                        United States v. Gomez, No. 201600331


             Evidence of intoxication in this case has been admitted
         merely on the question of whether the complainant consented,
         or the accused had a reasonable belief that she consented, and
         for its impact upon her memory. . . .39
    The requested instruction is not a correct statement of law or fact and
thus fails the first prong of the Carruthers test. Specifically, the language
that “[RMR’s] capacity to consent is not before you . . . [and] . . . the
government concedes that [RMR] had the capacity to consent despite her
possible intoxication” does not comport with the relevant statutory language
or the facts of this case. Our conclusion is grounded in the definition of
“bodily harm,” which requires proof of lack of consent, and the definition of
“consent,” which “means a freely given agreement to the conduct at issue by a
competent person.” These two statutory definitions implicate the putative
victim’s “competence” in the sexual assault and abusive sexual contact
specifications alleged here.40 The appellant’s assertion that the government
conceded RMR’s capacity to consent is also inaccurate. Before voir dire, the
TC asserted his belief that capacity was relevant to the aggravated sexual
contact offense, “due to [RMR’s] lack of memory, there is the potential to
argue that she did not have capacity and she was not competent for that
sexual contact.”41 Indeed, the military judge cited the absence of
governmental concession as a reason for not providing the defense-requested
instruction—“given that the government is not conceding on the issue of
competence within the definition of consent, I am not going to give your
instruction.”42
    We conclude the remainder of the defense-requested instruction was
substantially covered in the military judge’s instructions, and that his
declination to give any portion of the proposed instruction did not deprive or
seriously impair any defense. Carruthers, 64 M.J. at 346. The appellant has
therefore failed to satisfy any of the three prongs of the Carruthers test.
Bailey, 77 M.J. at 14.

  Accordingly, we conclude the military judge was well within his discretion
when he declined to give the defense requested instruction.



   39   Appellate Exhibit (AE) XX.
   40   Charge sheet.
   41   Record at 37.
   42   Id. at 418.




                                         13
                   United States v. Gomez, No. 201600331


   2. Competence and capacity-to-consent instructions
    The appellant argues the military judge abused his discretion by
instructing the members on RMR’s competence and capacity to consent, after
ruling that competence and capacity were not at issue, and that the
instructions provided by the military judge on capacity and consent were
inaccurate and incomplete. We disagree.
    a. Law
     “Whether a panel was properly instructed is a question of law which we
review de novo.” United States v. Mott, 72 M.J. 319, 325 (C.A.A.F. 2013)
(citations and internal quotation marks omitted). “The military judge has an
independent duty to determine and deliver appropriate instructions.” United
States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citation omitted). In this
regard, the military judge bears the primary responsibility for ensuring the
members are properly instructed on the elements of the offenses raised by the
evidence, “as well as potential defenses and other questions of law.” Id.
(citations and internal quotation marks omitted).
     Where there is no objection to an instruction at trial, we review for plain
error. United States v. Robinson, __ M.J. __, 2018 CAAF LEXIS 184 at *12-
13, (C.A.A.F. Mar. 26, 2018). “[The appellant] bears the burden of
establishing: (1) there is error; (2) the error is clear or obvious; and (3) the
error materially prejudiced a substantial right.” Id. at *13 (citing United
States v. Davis, 76 M.J. 224, 230 (C.A.A.F. 2017). “To establish plain error,
‘all three prongs must be satisfied.”’ Id. (quoting United States v. Gomez, 76
M.J. 76, 79 (C.A.A.F. 2017) (additional citation omitted). “The third prong is
satisfied if the appellant shows ‘a reasonable probability that, but for the
error [claimed], the outcome of the proceeding would have been different.’” Id.
(quoting United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017)).
   b. Analysis
    The appellant argues that he detrimentally relied on the government’s
concession and the military judge’s ruling that competence and capacity were
not at issue. He contends the military judge’s decision to instruct the
members on RMR’s competence and capacity to consent violated his due-
process right to a fair trial. He also asserts that the instructions provided by
the military judge were inaccurate and incomplete because the instructions
failed to identify the condition that could have rendered RMR incompetent to




                                      14
                       United States v. Gomez, No. 201600331


consent and also failed to provide the scienter43 necessary to discourage
arbitrary or discriminatory enforcement. We disagree.
   First, the military judge did not finally rule, nor did the government
concede, that competence and capacity were not at issue.
    The military judge’s ruling was limited to precluding the government
from arguing competence and capacity and not a final ruling that competence
and capacity were not at issue in this case.44 We understand the military
judge’s ruling in the context in which it was made—following the
government’s dismissal of the incapacity offenses and prior to trial on the
merits and based on proffers by the parties, review of available documents,
and abbreviated argument. The ruling cannot be fairly taken to be a legally
dubious alteration of the remaining offenses, all of which implicated the
“freely given agreement to the conduct at issue by a competent person.” Art.
120(g)(8)(A), UCMJ. If, as the appellant implies without citation to authority,
this preliminary order was not subject to modification by the military judge,
it would be contrary to the “law of the case doctrine”45 as well as the military
judge’s “primary responsibility for ensuring the members are properly
instructed” on matters raised by the evidence. Ober, 66 M.J. at 405 (emphasis
added) (citation and internal quotation marks omitted). The appellant’s
argument also ignores a military judge’s explicit authority to change “a ruling
made by that or another military judge in the case except a previously
granted motion for a finding of not guilty, at any time during the trial.” RULE
FOR COURTS-MARTIAL (R.C.M.) 801(e)(1)(B), MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2012 ed.). To the extent the TDC thought that he
had convinced the military judge to remove part of the statutory definition of
consent from the trial, he cannot claim unfair surprise at the military judge’s
decision to ultimately adopt a correct view of the law—one that the TDC
seemed to share—particularly when the TDC was responsible, in part, for
introduction of evidence that placed RMR’s competence in issue.46
   Nor did the government concede that competence and capacity were not
at issue. To the contrary, the TC argued capacity and consent were

    43“The terms ‘scienter’ and ‘mens rea’ are often used interchangeably.” United
States v. Haverty, 76 M.J. 199, 204, n.7 (C.A.A.F. 2017).
    44   Record at 36-39.
    45  United States v. Ruppel, 49 M.J. 247, 253 (C.A.A.F. 1998) (In military
jurisprudence the “law of the case [doctrine] only applies to final rulings and does not
restrict a military judge’s authority or discretion to reconsider and correct an earlier
trial ruling.”) (citation omitted).
    46   Record at 366-67, 381, 442; AE XIX.




                                           15
                      United States v. Gomez, No. 201600331


potentially relevant to the abusive sexual contact specification since RMR
had no independent recollection of the appellant performing oral sex on her.
And the military judge acknowledged the government had not conceded this
issue when he declined to provide the defense-requested instruction discussed
above.
    Second, the military judge’s instructions on capacity and consent were
accurate and consistent with the statutory definition of consent,47 and the
definition of key terms in United States v. Pease.48
   After the military judge declined to give the defense-requested instruction
that RMR’s capacity to consent was not an issue for the members to decide,
the TDC acknowledged that he wanted the military judge to provide the




    47 Record at 496-97 (“[T]he government also has the burden to prove beyond a
reasonable doubt that [RMR] did not consent to the physical acts. ‘Consent’ means a
freely given agreement to the conduct at issue by a competent person. An expression
of lack of consent through words or conduct means there is no consent. Lack of verbal
or physical resistance or submission resulting from the use of force, threat of force, or
placing another person in fear does not constitute consent. . . . Lack of consent may
be inferred based on the circumstances. All the surrounding circumstances are to be
considered in determining whether a person gave consent or whether a person did
not resist or cease [sic] to resist only because of another person’s actions. A sleeping,
unconscious, or incompetent person cannot consent to a sexual act. The government
has a burden to prove beyond a reasonable doubt that the consent to the physical acts
did not exist. . . . Consent means a freely given agreement to the conduct at issue by
a competent person. A competent person is simply a person who possesses the
physical and mental ability to consent. An incompetent person is a person who lacks
either the mental or physical ability to consent. To be able to freely give an
agreement, a person must first possess the cognitive ability to appreciate the nature
of the conduct in question, then possess the mental and physical ability to make and
to communicate a decision regarding that conduct to the other person.
   A person is incapable of consenting when she lacks the cognitive ability to
appreciate the sexual conduct or the physical or mental ability to make and
communicate a decision about whether she agrees to the conduct.”). See also Art.
120(g)(8)(A)-(C).
    48 75 M.J. 180, 185 (C.A.A.F. 2016) (approving definitions of three Article 120,
UCMJ, terms including: (1) “competent person as a person who possesses the
physical and mental ability to consent;” (2) “incompetent person as one who lacks
either the mental or physical ability to consent due to a cause enumerated in the
statute,” and (3) “incapable of consenting as lack[ing] the cognitive ability to
appreciate the sexual conduct in question or [lacking] the physical or mental ability
to make and to communicate a decision about whether they agreed to the conduct”)
(citations and internal quotation marks omitted).




                                           16
                      United States v. Gomez, No. 201600331


“Pease definitions.”49 Because the TDC did not object to the draft instructions
provided for his review by the military judge, or to the instructions ultimately
given to the members, we review for plain error.50
    The statutory definition of consent is “a freely given agreement to the
conduct at issue by a competent person.”51 Therefore, “[a] full definition of
consent includes [the] definition of competence to consent.” United States v.
Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (citations omitted).52 As a
result, we find no error with the military judge’s decision to instruct the
members regarding what constitutes a “competent person” for purposes of
defining consent, nor do we find error in the instructions provided.
    Significantly, the military judge’s instructions neither transformed the
charged specifications into Article 120(b)(3)(A), UCMJ, specifications nor
alleviated the government’s affirmative responsibility to prove beyond a
reasonable doubt that RMR did not, in fact, consent. The military judge
instructed the members that the government had the burden to prove beyond
a reasonable doubt that RMR did not consent at least three times. “Absent
evidence to the contrary, [we] may presume that members follow a military
judge’s instructions.” United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F.
2000) (citations omitted).
   Third, the appellant failed to establish that the instructions provided by
the military judge were inaccurate, incomplete or constituted plain error.
    Even if we were to assume without deciding that any instruction should
have identified the condition that rendered RMR incompetent to consent and
should also have required that the appellant “knew or reasonably should
have known” of that condition, and that the military judge erred in failing to
so instruct, the appellant has not established plain error. Specifically, the
appellant has not met his burden of showing “a reasonable probability that,
but for the [errors claimed], the outcome of the proceeding would have been
different.” Lopez, 76 M.J. at 154 (citation and internal quotation marks
omitted).
   It is uncontroverted that prior to engaging in the charged sexual
misconduct the appellant: knew RMR had consumed enough alcohol to render

   49   Record at 418-19.
   50   Id. at 491.
   51   Art. 120(g)(8)(A), UCMJ.
   52 In Long, the military judged instructed the members that “[c]onsent means
words or overt acts indicating a freely given agreement to the sexual conduct by a
competent person.” 73 M.J. at 543.




                                       17
                   United States v. Gomez, No. 201600331


her very drunk; knew she was sick and vomited more than once due to the
alcohol she consumed; and knew she was so physically impaired by the
alcohol she consumed that she had to be carried to his barrack’s room. It is
also uncontroverted that the appellant performed oral sex on RMR and that
RMR had no independent recollection of that sexual contact. Therefore, if the
military judge had instructed the panel members on the presumed
appropriate listed condition and mens rea, the panel would have found that
RMR was severely impaired by alcohol, and that the appellant knew of this
impairment prior to engaging in the charged sexual conduct.
    The appellant failed to demonstrate “a reasonable probability that, but for
[the the military judge’s failure to instruct on the specific condition that
caused RMR’s incompetence and the mens rea requirement], the outcome of
the proceeding would have been different.” Id. Because the appellant failed to
establish the required prejudice, we conclude that the military judge did not
plainly err in instructing the members.
    We find no error, and certainly no plain error, in the military judge’s
instructions or in his decision to use the Pease instruction to further explain
to the members what constitutes a competent person.
C. Vagueness
   The appellant argues, as applied in this case, the term incompetent was
unconstitutionally vague because it neither provided him notice of the
prohibited conduct nor defined a standard of guilt that avoids arbitrary
enforcement.
    The government avers that the TDC waived any objection to the
definition of incompetent when he requested and received the Pease
instruction. The government argues that even absent waiver the appellant is
entitled to no relief as the CAAF has endorsed the definition in Pease, and
the appellant identified no binding authority in support of the proposition
that an ordinary person cannot understand that definition. We agree the
appellant is entitled to no relief.
   1. Law
    “Due process requires fair notice that an act is forbidden and subject to
criminal sanction.” Vaughan, 58 M.J. at 31(citation and internal quotation
marks omitted). “It also requires fair notice as to the standard applicable to
the forbidden conduct.” Id. (citing Parker v. Levy, 417 U.S. 733, 755 (1974)).
“Void for vagueness simply means that criminal responsibility should not
attach where one could not reasonably understand that his contemplated
conduct is proscribed.” Parker, 417 U.S. at 757 (citation and internal
quotation marks omitted). “In determining the sufficiency of the notice a
statute must of necessity be examined in the light of the conduct with which


                                      18
                   United States v. Gomez, No. 201600331


a defendant is charged.” Id. (citation and internal quotation marks omitted).
The CAAF has found such notice in the Manual for Courts-Martial, federal
law, state law, military case law, military custom and usage, and military
regulations. Vaughan, 58 M.J. at 31.
   2. Analysis
    The appellant avers that the term incompetent is unconstitutionally
vague because it neither provided him notice of the prohibited conduct nor
defined a standard of guilt that avoids arbitrary enforcement. He argues,
even assuming the Government could prosecute bodily harm on a theory of
incompetence due to intoxication, that Article 120(b)(1)(B) fails to delineate
the applicable standard for whether a person is competent to consent.
   Bodily harm in this case is a nonconsensual sexual act or contact, where
consent means a freely given agreement to the conduct at issue by a
competent person. At trial, the military judge instructed on the meaning of
both an “incompetent person” and a “competent person” in accordance with
Pease. Between the two instructions, the military judge provided the
members a reasonably understandable standard for determining whether a
person is competent to consent to sexual conduct.
   We find the appellant’s arguments that the term incompetent is void for
vagueness unconvincing. The appellant was on reasonable notice that his
conduct was subject to criminal sanction. This issue is without merit.
D. Legal and factual sufficiency
   The appellant avers the evidence is both legally and factually insufficient
to prove any of the charged sexual offenses or, alternatively, that the
evidence is factually insufficient to overcome his reasonable mistake of fact as
to consent. Specifically, he alleges there is no evidence that RMR
communicated, through words or conduct, a lack of consent prior to the
sexual activity, nor are there words, conduct, or circumstances sufficient to
show the appellant had reason to believe that RMR was not consenting to the
sexual activity. We disagree.
    We review for both legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990)); see also Art. 66(c), UCMJ. When reviewing for
legal sufficiency, we ask whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). In evaluating factual sufficiency, we determine whether, after
weighing the evidence in the record of trial and making allowances for not



                                      19
                   United States v. Gomez, No. 201600331


having personally observed the witnesses, we are convinced of the appellant’s
guilt beyond a reasonable doubt. Id. at 325.
   The appellant was convicted of sexually assaulting RMR by penetrating
her vulva with his penis twice, once in the shower and moments later on his
bed, and penetrating her vulva with his finger on his bed. He was also
convicted of abusive sexual contact for placing his mouth on her vulva. A
conviction for each sexual offense required proof beyond a reasonable doubt of
the alleged sexual act or contact and that the act or contact was without
RMR’s consent.
    1. Evidence of the sexual acts and sexual contact
   The evidence that the appellant committed the alleged sexual acts and
sexual contact is overwhelming and undisputed.
    RMR testified the appellant penetrated her vulva with his penis in the
shower and then penetrated her vulva with his finger and penis on his bed.
Her testimony was corroborated, in part, by the appellant and by forensic
evidence. The appellant admitted penetrating RMR’s vulva with his penis in
the shower and on his bed, and performing oral sex on RMR during the
NCIS-recorded phone conversation with RMR and apologized for having sex
with RMR during that call and on other occasions. In addition, his DNA,
including spermatozoa found on swabs taken from RMR’s vagina, and his
semen DNA, found in her underwear, corroborated penile penetration.
   The appellant is the sole source of evidence that he placed his mouth on
RMR’s vulva. During the recorded phone conversation he informed RMR that
he “did some pretty crazy things” like performing oral sex on her,
commenting that it was his “first time.”53 We are convinced beyond a
reasonable doubt that the appellant committed the charged sexual acts and
sexual contact.
   2. Evidence of bodily harm and lack of consent
   We find beyond a reasonable doubt that each sexual act and contact
constituted “bodily harm” and that RMR did not consent to the sexual
conduct at issue.
    First, RMR’s testimony that she expressed her lack of consent through
words and conduct is credible, notwithstanding her limited memory. Her
testimony that she remembered being bent over in the shower with the
appellant behind her, penetrating her vagina with his penis was consistent
with his admission of engaging in intercourse in the shower. Her recollections


   53   PE 12.




                                      20
                       United States v. Gomez, No. 201600331


of experiencing difficulty moving and speaking and having to concentrate to
move her arm and speak were consistent with her level of intoxication. We
find her testimony that she tried to nudge or elbow the appellant, then stood
up, turned around, and said “No,” compelling and consistent with the type of
traumatic memories often recalled in such circumstances, according to expert
testimony. Likewise, we find her testimony about being “laid down on [her]
side,” feeling the appellant’s fingers and then his penis inside her vagina, and
trying to get him to stop first using her arms and then saying ‘No,’”
consistent with her level of intoxication and and also consistent with the type
of traumatic memories often recalled in such circumstances.54
    Second, we find RMR’s testimony that she did not consent to the sexual
acts or contact credible and corroborated, in part, by the appellant’s
statements.
   Notably, in three conversations with RMR after the charged misconduct,
the appellant made no claim that she consented to the sexual conduct.
Instead, he admitted engaging in the charged sexual acts, evaded or provided
unconvincing answers to RMR’s probing questions, and repeatedly
apologized.
    While driving RMR back to the Us’ apartment the morning after the
charged misconduct and after RMR acknowledged that she was “mad” at the
appellant, he said, “he just wishes he made better decisions that night.”55 In a
later text conversation, the appellant neither disputed RMR’s claim that he
knew she was not interested in sexual activity nor claimed that she
consented. When RMR asked how he could justify undressing her and putting
her in the shower without her consent, he unconvincingly replied, “I was
drunk I liked you idk (sic) I thought you were thinking the same as me that’s
why I’m saying I’m sorry . . . Truth you were drunk so was I okay[.]”56 During
that conversation, the appellant said he was sorry at least five times and
after additional prompting texted, “I’m sorry for having sex with you.”57
   Several weeks later, the appellant repeated this pattern in the NCIS-
recorded phone conversation. He admitted to committing the sexual acts and
again apologized to RMR with no claim that she consented. He also provided
new insight into what he did and why. When RMR asked why he had sex
with her in the shower when she was “super drunk” and smelled of vomit, he

   54   Record at 198-200.
   55   Id. at 203.
   56   PE 3 at 4-5.
   57   Id. at 6.




                                        21
                   United States v. Gomez, No. 201600331


answered, “you were cleaning yourself – such a turn on – that’s a turn on
yeah.”58 In response to RMR’s questions regarding what happened that night,
the appellant admitted he did some “pretty crazy things like [performing oral
sex on her].”59 RMR had not recalled or reported the oral sex. The recording of
this entire exchange is particularly significant evidence.
   We find the absence of any assertions or plausible evidence of consent in
these last two recorded conversations significant as they followed RMR’s
representations that she was blacked out due to alcohol intoxication and
could not remember details of what happened. We also find the appellant’s
repeated apologies evidence a consciousness of guilt. See United States v.
Quichocho, No. 201500297, 2016 CCA LEXIS 677, unpublished op. (N-M. Ct.
Crim. App. 29 Nov 2016).
   3. Mistake of fact as to consent
    After careful review of the evidence, we are convinced beyond a
reasonable doubt that the appellant did not honestly hold the mistaken belief
that RMR consented, and even if he did, any such mistaken belief was not
objectively reasonable. See R.C.M. 916(j)(1).
   In conclusion, we find RMR’s testimony to be credible, consistent even
through the crucible of extensive cross-examination, and corroborated by
other evidence. The appellant’s admissions that he committed the two
charged acts of penile penetration and oral sex, and his later remorse
evidencing his consciousness of guilt weigh heavily in our determination.
    Based on the record before us, and considering the evidence in the light
most favorable to the government, a reasonable fact finder could have found
all the essential elements of the charged offenses beyond a reasonable doubt.
Turner, 25 M.J. at 324. After weighing all the evidence and recognizing that
we did not see or hear the witnesses, we are also convinced that the appellant
is guilty beyond a reasonable doubt. Id. at 325.
E. Erroneous admission of evidence
   The appellant avers the military judge abused his discretion by admitting
evidence of RMR’s consumption of alcohol.
   “Where an appellant has not preserved an objection to evidence by
making a timely objection, that error will be forfeited in the absence of plain
error.” United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007) (citing
MILITARY RULE OF EVIDENCE 103(d), MCM, UNITED STATES (2016 ed.)). “A

   58   PE 12.
   59   Id.




                                      22
                   United States v. Gomez, No. 201600331


timely and specific objection is required so that the court is notified of a
possible error, and so has an opportunity to correct the error and obviate the
need for appeal.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)
(citation and internal quotation marks omitted). The appellant “has the
burden of establishing (1) error that is (2) clear or obvious and (3) results in
material prejudice to his substantial rights.” Id. (citing Brooks, 64 M.J. at
328).
    The appellant did not object to the evidence of RMR’s consumption of
alcohol. In fact, the TDC acknowledged the relevance of this evidence. The
relevance of RMR’s consumption of alcohol to each sexual offense alleged is
readily manifest in this case. See Art. 120(g)(8)(B), UCMJ (“[a]ll the
surrounding circumstances are to be considered in determining whether a
person gave consent”); See also United States v. Clifton, 35 M.J. 79, 81
(C.A.A.F. 1992).
   There was no error, much less plain error, in admitting evidence of RMR’s
consumption of alcohol.
                               III. Conclusion
   The findings and sentence, as approved by the CA, are affirmed.
   Senior Judge HUTCHISON and Judge FULTON concur.


                                       For the Court




                                       R. H. TROIDL
                                       Clerk of Court




                                      23
