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

                                Before
            F.D. MITCHELL, K.M. MCDONALD, M.K. JAMISON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                       ALEJANDRO TORRES
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201300396
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 28 June 2013.
Military Judge: LtCol Christopher J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC.

                             28 August 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

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

JAMISON, Judge:

     A military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of sexual
assault and adultery in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934. The
military judge sentenced the appellant to reduction to pay grade
E-1, confinement for a period of two years, and a dishonorable


Judge Jamison participated in the decision of this case prior to detaching
from the court.
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant raises seven assignments of error (AOE). In
his first AOE, the appellant argues that the military judge
erred when he relied on his own knowledge of “the ways of the
world” and “human experience” to conclude that the victim, AM,
was incapable of consenting to the sexual act. In his second
AOE, the appellant argues that the military judge committed
legal error by not articulating the standard he used in his
special findings to conclude that AM was incapable of consenting
to the appellant’s sexual act. In his third AOE, the appellant
argues that Article 120(b)(3), UCMJ, as-applied to his conduct,
violated his right to equal protection under the law. In his
fourth AOE, the appellant argues that the statutory element
requiring a victim to be “incapable of consenting . . . due to
impairment by . . . [an] intoxicant,” is unconstitutionally
vague as-applied to the facts of his case. In his fifth AOE,
the appellant argues that the evidence is legally and factually
insufficient to sustain his sexual assault and adultery
convictions. In his sixth AOE, the appellant argues that the
military judge erred in calculating the maximum punishment for
sexual assault. In his seventh AOE, the appellant argues that
unlawful command influence infected his court-martial requiring
the dismissal of charges.

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

               Factual and Procedural Background

     The victim in this case, AM, married a high school friend,
Lance Corporal (LCpl) CM, in May of 2012. Following their
wedding, AM remained in her home town while LCpl CM returned to
his duty station in Twentynine Palms, California. In July 2012,
AM came to the Southern California area to spend time with her
husband. With LCpl CM soon to deploy and having had no
honeymoon following their wedding, the two visited Disneyland in
Anaheim, California on 1 July 2012. The next day, they traveled
to Twentynine Palms, California, and spent the night in a local
motel. That evening at the motel, they argued; AM was upset
that LCpl CM had been texting a female Marine. Tempers subsided
and they later engaged in sexual intercourse.


                                2
     On 2 July 2012, LCpl CM and AM planned to house-sit for
LCpl CM’s best friend, LCpl CG, and his wife, GG, while they
spent the 4th of July holiday in Arizona. Although LCpl CM had
stayed at LCpl CG’s house in the past, this was the first time
that AM had been there. Having had only three hours sleep the
previous night, AM spent the day at the motel pool while LCpl CM
was at work. AM had a breakfast burrito in the morning, some
crackers or chips during the day, and met her husband later that
afternoon.

     LCpl CM and the appellant were friends and worked in the
same section. LCpl CM was interested in having a deployment
going-away party at LCpl CG’s house that evening and invited the
appellant. Prior to going to the house, AM, LCpl CM, and the
appellant ordered burritos from a local restaurant and ate them
in the appellant’s barracks room. AM only ate half of her
burrito.

     While at the barracks room, LCpl CM contacted various
friends and invited them to his party. LCpl CM and the
appellant bought beer and other alcohol at the base package
store and all three arrived at LCpl CG’s house at approximately
2130. LCpl CM and AM stored their luggage in the spare bedroom
that contained an air mattress.

     Despite LCpl CM’s efforts to invite friends to his party,
due to the late notice and the fact that some had previously
scheduled plans to be out of the area for the 4th of July
holiday period, nobody else showed up at the house. LCpl CM,
the appellant, and AM started drinking. Initially, AM had
debated whether she should just go to sleep because she was very
tired from the night before.

     Over the course of playing three rounds of “beer pong,” AM
drank approximately six beers.1 Record at 157. Additionally,
over the next several hours, she drank two shots of vodka, part
of an additional beer, and a couple of mixed drinks. She


1
  According to AM, the version of “beer pong” (a popular drinking game) that
they played starts by pouring beer into ten cups arranged in the shape of a
triangle at both ends of a table. See Prosecution Exhibit 16. Approximately
two beers are used in filling each player’s ten cups for one round of play.
The object of the game is for the player to throw a ping pong ball into one
of the opponent’s cups on the opposite end of the table. If the player is
successful and the ping pong ball lands in one of the opponent’s cups, the
opponent has to drink the contents of that cup. AM testified that she lost
every round and as a consequence, she estimated that she drank approximately
six beers (two beers per round). Record at 157.
                                     3
consumed this approximate amount of alcohol from about 2200
until about 0115, when she began to feel ill.

     AM told her husband she was not feeling well. She
staggered down the hallway using the walls for support and went
into the bathroom. Both LCpl CM and the appellant saw AM
stagger down that hall and into the bathroom. She knelt next to
the toilet and started “dry heaving.” Id. at 162. After a few
minutes, AM fell asleep in the bathroom at approximately 0130.

     At approximately the same time, LCpl CM, highly intoxicated
himself, went outside on the concrete patio to smoke a
cigarette. While smoking, he was sitting on a table but soon
fell asleep on top of the table.

     The next thing AM remembered was waking up in the spare
bedroom on the air mattress. She had no memory how she got
there and was disoriented and in discomfort; she then realized
that someone was having sexual intercourse with her. As she
started to wake up, she realized that she was wearing only a
bikini top. The tank top, shorts, and underwear that she had
worn while asleep in the bathroom had been removed.2 By the time
she regained her senses, AM saw the appellant, naked, lying next
to her. She rolled off the air mattress, grabbed some clothes
that were on top of her red suitcase, and went to look for her
husband.

     AM found her husband passed out on the patio table. She
yelled at him and began to shake the table in an effort to wake
him up, causing the table to fall over and LCpl CM’s face to
smash against the concrete patio. Within seconds, LCpl CM
started bleeding.

     Upset, disoriented, and scared, AM called 911 between 0240
and 0245. When speaking with the 911 operator, AM was emotional
and was having difficulty orienting herself in the house.
Having never before been in the house, AM did not know the
address, but eventually was able to find some mail with the
house address. While her primary concern was her husband’s
condition, she told the dispatcher that she had been raped by




2
  AM’s shorts and underwear were on top of a pile of her husband’s clothes
located on top of his opened black suitcase. See PE 8 and 9.


                                      4
the appellant and that the appellant was still in the house.
Prosecution Exhibit 1.3

     At approximately 0255, local police arrived. One officer
took pictures while another interviewed AM. According to the
officer who interviewed her, AM smelled of alcohol, was crying,
and slurred some of her words. In his opinion, he believed that
AM was still under the effects of alcohol.

     The police arrested the appellant. AM underwent a sexual
assault forensic examination at the local hospital. As part of
the examination, AM provided a urine sample and a blood sample.
The urine sample collected at approximately 0710 showed a urine
alcohol concentration (UAC) of .08% weight over volume.4 The
blood sample taken at 0730 showed AM’s blood alcohol content
(BAC) to be 0.00%.

     At trial, the trial defense counsel sought to impeach the
credibility of AM and attack the Government’s theory that AM was
incapable of consenting due to the effects of alcohol. Citing
her BAC value of .00% at 0730, trial defense counsel argued that
AM’s testimony of how much alcohol she drank lacked credibility.
Trial defense counsel argued that rather than being incapable of
consent, AM was instead lying to cover for her consensual sexual
conduct with the appellant. After considering all the evidence
and arguments by both counsel, the military judge rejected the
defense theory and convicted the appellant of both charges.
Record at 373.

      Following the announcement of sentence, both parties
requested special findings from the military judge pursuant to
RULE FOR COURTS-MARTIAL 918(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). Id. at 441-42. The military judge attached special
findings for the sexual assault conviction prior to
authenticating the record. AE XXXII.




3
  During the 911 call, AM stated that she did not think that the appellant
meant to rape her and that she did not want to get the appellant in trouble.
PE 1; see AE XVIII (transcript of the 911 call) at 5.
4
  Because of unreliability associated with extrapolating a level of
intoxication from AM’s UAC, the forensic toxicologist rejected speculation
regarding AM’s alcohol content in her urine other than offering the opinion
that AM had consumed alcohol.
                                      5
        Sufficiency of the Evidence ad Special Findings

     Three of the appellant’s assignments of error (I, II, and
V) concern themselves with the sufficiency of the evidence and
the military judge’s analysis of the evidence in his special
findings. Because the appellant’s first and second AOEs address
the military judge’s special findings, Appellate Exhibit XXXII,
we consolidate these AOEs with AOE V, which attacks the
sufficiency of the evidence as to both offenses. We first
consider the legal and factual sufficiency of the sexual assault
conviction before moving to the adultery conviction.

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offense, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant’s guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325.

     The term “reasonable doubt” does not mean that the evidence
must be free of any conflict. United States v. Rankin, 63 M.J.
552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F.
2007) (citation omitted). When weighing the credibility of a
witness, this court, like a fact-finder at trial, examines
whether discrepancies in witness testimony resulted from an
innocent mistake, including lapses in memory, or a deliberate
lie. United States. v. Goode, 54 M.J. 836, 844 (N.M.Crim.Ct.App
2001). Additionally, the members may “believe one part of a
witness’s testimony and disbelieve another.” United States v.
Harris, 8 M.J. 52, 59 (C.M.A. 1979).

     To convict the appellant of sexual assault at trial, the
Government was required to prove the following: (a) that the
appellant committed a sexual act upon AM; and (b) that AM was
incapable of consenting to the sexual act due to impairment by
alcohol and that condition was known or reasonably should have
been known by the appellant. MCM, Part IV, ¶ 45(b)(3) &
(b)(3)(A).

     The appellant does not contest that he committed a sexual
act upon AM. His theory at trial and on appeal centers on
whether AM was “incapable of consenting.” The appellant argues
that AM was not a credible witness and that the scientific

                                6
evidence contradicted AM’s claim of having ingested as much
alcohol as she claimed in her testimony. Appellant’s Brief of
18 Feb 2014 at 24. We disagree.

     The appellant primarily relies on the forensic
toxicologist’s opinion that “at most, [AM’s] BAC was [at] .09”
grams of alcohol per 100 milliliters of blood. Id. This level,
the appellant argues, is insufficient to conclude beyond a
reasonable doubt that AM was incapable of consenting to sexual
intercourse. We find the appellant’s argument unpersuasive.

     First, we note that the same forensic toxicologist was
unable to definitively state what AM’s BAC was at the time she
fell asleep in the bathroom, or at the time of the sexual
assault. Although the forensic toxicologist testified regarding
the average hourly rate of alcohol elimination from the
bloodstream, she was unable to extrapolate to a reasonable
degree of scientific certainty because the BAC level of 0.00%
did not have a starting point. Record at 310.

     Given the scientific caveats of the forensic toxicologist’s
opinion, the value the appellant places on AM’s BAC -- as the
primary means of attacking the sufficiency of the evidence --
diminishes. The forensic toxicologist also testified that
drinking on an empty stomach may lead to quicker alcohol
absorption, and that drinking while tired may produce additive
effects with regard to alcohol impairment. Id. at 300, 321.

     In addition to AM’s testimony, LCpl CM testified that he
saw AM stagger into the bathroom using the wall for balance.
Additionally, he testified that AM had passed out on prior
occasions from drinking too much alcohol. LCpl CM testified
that on each occasion he had to carry her to bed, and each time
she remained unconscious while he carried her.

     Following the sexual assault, AM called 911 and accused the
appellant of rape. When the deputies arrived, AM smelled of
alcohol, her eyes were bloodshot, and she slurred some of her
speech. Additionally, the military judge specifically found
that AM’s testimony was “credible [and] very believable.” AE
XXXII at 6.

     Conducting our own factual sufficiency analysis, we are
unpersuaded by the appellant’s characterization of the
scientific evidence and his credibility attacks on AM and LCpl
CM. Additionally, the military judge specifically commented on
AM’s credibility and believability. Conducting our own analysis

                                7
and considering the record before us -- mindful “that the trial
court saw and heard the witnesses,” Article 66(c), UCMJ -- we
are convinced beyond a reasonable doubt of the appellant’s guilt
of sexual assault upon AM.

     Similarly, we reject the appellant’s argument that LCpl
CM’s testimony was insufficient to establish the terminal
element of adultery. In addition to being a percipient witness,
LCpl CM testified about the effect that the appellant’s acts had
on good order and discipline. He testified that he struggled at
work for several months following the incident and that he found
it difficult to trust other Marines because of what the
appellant did to AM. Additionally, because of the incident,
LCpl CM was unable to deploy, and the appellant received a
military protective order and was transferred to a different
work section.

     The appellant argues that proof of the terminal element was
insufficient because LCpl CM’s testimony regarding whether the
appellant’s conduct was prejudicial to good order and discipline
centered on the sexual assault charge, not the adultery charge.
We disagree. One aspect for the fact-finder to assess on the
question of whether adulterous conduct is prejudicial to good
order and discipline is whether “the adulterous act was
accompanied by other violations of the UCMJ.” MCM, Part IV,
¶ 62c(2)(f). In this regard, LCpl CM’s testimony was sufficient
to establish the terminal element and we are convinced beyond a
reasonable doubt of the appellant’s guilt of adultery.

     Finally, with respect to both offenses, we conclude that a
rational trier of fact could have found that the evidence met
the essential elements of the charged offenses, viewing the
evidence in a light most favorable to the Government.

                        Special Findings

     Because the appellant’s first and second AOE address the
military judge’s special findings, AE XXXII, we consolidate
these AOEs for purposes of our analysis. In his first AOE, the
appellant argues that the military judge committed plain error
in his special findings when he discounted the scientific
evidence with regard to AM’s level of intoxication in favor of
his “knowledge of ‘human nature and the ways of the world.’”
Appellant’s Brief at 11 (quoting AE XXXII). In his second AOE,
the appellant argues that the military judge committed plain
error by his failing to “articulate[] what standard he actually
used to determine guilt.” Id. at 14 (citing AE XXXII).

                                8
     The appellant’s arguments are somewhat novel. Due to the
fact that the military judge submitted his special findings on
the date he authenticated the record, the appellant did not have
a realistic opportunity to object at trial. Thus, we agree with
his assertion that the correct scope of review is plain error.5

     A. Reliance on Common Sense and Ways of the World

     The appellant argues that the military judge committed
plain error when he analyzed the evidence and concluded that AM
was incapable of consenting due to impairment by alcohol.
Appellant’s Brief at 10-12. The appellant does not take issue
with the general proposition that a trier of fact may rely on
“[o]rdinary human experience and matters of common knowledge.”
Appellant’s Brief at 10. Instead, he argues that the military
judge used his “human experience” to discount the scientific
evidence of AM’s BAC. We disagree.

     In conducting our plain error analysis, we begin with the
legal premise that a military judge who “sits as the trier of
fact” is presumed to “know[] the law and appl[y] it correctly.”
United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011)
(citing United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F.
2000)). Accordingly, the appellant faces a high burden to even
establish error because “plain error before a military judge
sitting alone is rare indeed.” United States v. Raya, 45 M.J.
251, 253 (C.A.A.F 1996).

     In this case, we conclude that the military did not err and
applied the correct standard in concluding beyond a reasonable
doubt that AM was “incapable of consenting due to impairment by
alcohol.” AE XXXII. Contrary to the appellant’s argument, the
military judge did not inappropriately reject, ignore, or
discount the scientific evidence. Rather, he found that based
on the scientific testimony of the forensic toxicologist, “[n]o
credible evidence was presented to pinpoint when [AM’s] BAC
reached 0.00%.” AE XXXII at 6. Based on this finding, which is
clearly supported by the record, the military judge concluded
that he was unable “to determine [AM’s] expected BAC on or about
the time she passed out or during the sexual act.” Id.

     To reconcile the testimonial and scientific evidence, the
military judge stated that he relied on “[his] common sense and

5
  Within the context of our plain error review, we will grant relief “only
where (1) there was error, (2) the error was plain and obvious, and (3) that
error materially prejudiced a substantial right of the [appellant].” United
States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011).
                                      9
[his] knowledge of human nature and the ways of the world.” Id.
This was not error. First, the discussion portion to R.C.M.
918(c) instructs a finder of fact to “us[e] common sense and
knowledge of human nature, and . . . weigh the credibility of
witnesses.” Second, “ways of the world” assessment in
evaluating evidentiary credibility has long been recognized
within military law. See United States v. Frey, 73 M.J. 245,
250 (C.A.A.F. 2014) (holding that trial counsel’s argument to
members during sentencing that they rely on “the ways of the
world” to conclude that Frey would molest children in the future
without any evidentiary predicate was improper but not
prejudicial); see also United States v. Rivera, 54 M.J. 489, 492
(C.A.A.F. 2001) (holding that it was reasonable for members to
rely on “common knowledge” to conclude that a punch to the
stomach of “13-year-old . . . create[ed] a substantial risk of
serious bodily injury”). Although Frey and Rivera were both
members cases, we find no reason why the principles that members
may use their common sense and ways of the world to assess the
credibility of the evidence should not apply in equal measure in
a military judge alone case.6

     Simply stated, the military judge considered all the
scientific and testimonial evidence and used his common sense
and his knowledge of human nature to conclude that AM was
incapable of consenting to the sexual act due to her level of
intoxication. The military judge specifically articulated that
he considered the scientific evidence. He just did not ascribe
as much weight to the scientific evidence as the appellant.
Because we find the military judge’s reliance on his “common
sense” and “knowledge of human nature and the ways of world,” AE
XXXII at 6, was appropriate in evaluating all the evidence in
the record, the appellant cannot meet his burden of establishing
plain error.

     B. Articulation of Standard in Assessing AM’s Impairment

     Next, the appellant argues that the military judge
committed plain error by failing to articulate an appropriate
standard for assessing the appellant’s guilt. Appellant’s Brief
6
  The facts in this case are readily distinguishable from Frey. In Frey the
court analyzed the trial counsel’s sentencing argument in which he argued
that the members use their “common sense [and] ways of the world,” to
conclude that Frey, as a “child molester[],” would commit future acts of
child molestation. Frey, 73 M.J. at 247-48. There was no evidence offered
or admitted before the court in Frey that addressed Frey’s recidivistic
nature. Thus, it was inappropriate for members to rely on their common sense
and “ways of the world” with regard to recidivism because such evidence
requires at a minimum expert testimony and evidence.
                                     10
at 14. We disagree. The military judge used the appropriate
legal standard to conclude the AM was incapable of consenting to
the sexual act and that the appellant knew or reasonably should
have known of her condition.

     The appellant asserts that the military judge stated on the
record that he did not know the appropriate definition of
“incapable of consenting due to impairment of alcohol.” Id. at
12-14. Having carefully reviewed the record, we disagree with
the appellant’s assertion. Other than noting that the statute
does not define “incapable of consenting,” the military judge
expressed no confusion or lack of knowledge regarding the
appropriate standard to be applied to the appellant’s case.
Record at 442. This discussion came up within the context of a
request by both trial counsel and trial defense counsel for the
military judge to make special findings. The military judge’s
rationale for providing special findings was to articulate his
evaluation of all the evidence to include credibility
determinations of the witnesses as a way to assist “the concerns
that people may have with respect to the new [Article] 120.”
Id.

     We also disagree with the appellant’s argument that the
military judge’s special findings did not contain an appropriate
standard to assess that AM was incapable of consenting to the
sexual act. The military judge used the appropriate standard --
the beyond a reasonable doubt standard -- in assessing the
scientific, physical, and testimonial evidence in concluding
that the appellant was guilty of sexual assault. Accordingly,
we reject the appellant’s argument that the military judge
committed plain error with regard to his special findings.

                     Equal Protection Claim

     In his third AOE, the appellant argues that Article
120(b)(3), UCMJ, as-applied to his case violated his
constitutional rights to equal protection under the law. The
appellant argues that because he was intoxicated and had “higher
symptoms of impairment [than AM],” the only reason he was
labeled the perpetrator was his gender. Appellant’s Brief at
17. He constructs a strawman argument to propound his claim.
He argues that if having sexual intercourse with AM was a crime
because of the “effect alcohol had on her mental capacity . . .
then it was also a crime for [AM] to engage in sexual acts with”
the appellant. Id. at 18. We disagree.



                               11
     Prior to addressing the appellant’s equal protection
argument, however, we consider whether the appellant forfeited
his claim by his failure to raise it at trial. Under the
circumstances of this case, we conclude that he has. See United
States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013) (concluding
that Goings’s as-applied due process challenge to the
constitutionality of indecent acts under Article 134 was
forfeited by his failure to raise the issue and develop facts at
trial); see generally, United States v. Cupa-Guillen, 34 F.3d
860, 863 (9th Cir. 1994) (facial equal protection claim not
raised below not properly before the court on appeal); Chandler
v. Jones, 813 F.2d 773, 777 (6th Cir. 1987) (same). Because of
the “presumption against the waiver of [a] constitutional
right[]” without a “clearly established . . . relinquishment” of
that claimed right, we consider the appellant’s AOE forfeited
rather than waived. Goings, 72 M.J. at 205. Accordingly, we
review for plain error.

     We interpret the appellant’s equal protection argument as
essentially a selective-prosecution argument. Assuming arguedo
that the appellant’s claim is even justiciable because the
sovereign that elected to prosecute the appellant would have no
jurisdiction over AM, this argument is without merit. First,
the appellant has failed to meet his required burden of showing
discriminatory intent. United States v. Hagen, 25 M.J. 78, 84
(C.M.A. 1987). Second, courts are particularly “ill-suited to .
. . review” prosecutorial decisions. Wayte v. United States,
470 U.S. 598, 607 (1985). Third, we presume that the CA acted
in good faith in his decision to refer charges following the
recommendation of the Article 32, UCMJ, investigating officer
and the Article 34, UCMJ, pretrial advice recommendation from
his staff judge advocate. See United States v. Masucock, 1
C.M.R. 32, 35 (C.M.A. 1951) (noting that there is a long-
standing legal presumption of “regularity in the conduct of
governmental affairs”); see also Hagen, 25 M.J. at 84 (holding
that within context of allegation of vindictive prosecution by a
CA, “[t]here is a strong presumption that the convening
authority performs his duties as a public official without
bias”). We find no discriminatory effect or purpose associated
with Article 120(b)(3), UCMJ, generally, or with the decision
specifically to prosecute the appellant for sexually assaulting
AM. It was, after all, the appellant who initiated sexual
intercourse with the unconscious AM. Accordingly, the appellant
has not met his burden of establishing error, let alone plain
and obvious error.



                               12
        As-Applied Vagueness Challenge to Article 120(b)(3)

     In AOE IV, the appellant, for the first time on appeal,
argues that Article 120(b)(3), UCMJ, is unconstitutionally vague
as-applied to the facts of his case. Specifically, the
appellant argues that “[i]incapable of consenting to the sexual
act due to impairment by alcohol” is unconstitutionally vague
because this definition cannot be understood by “the common man
or those who prosecute” this offense. Appellant’s Brief at 19-
20. We disagree.

     We review de novo the appellant’s constitutional challenge
to Article 120(b)(3). See Goings, 72 M.J. at 205.
Additionally, we find that his failure to raise this challenge
at trial forfeited any claim absent plain error. Id.

     To determine whether a statute “clearly applies” and
provides fair notice of the proscribed conduct, we consider not
only the plain language of the statute, but also other sources,
including the “[Manual for Courts-Martial] . . . military case
law, military custom and usage, and military regulations.”
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003).

     In 2012, Congress amended Article 120, UCMJ.7 In the 2012
version of Article 120, Congress sought to clarify some of the
constitutional infirmities identified in the major congressional
overhaul of Article 120 as part of the National Defense
Authorization Act for Fiscal Year 2006 (FY06 NDAA). Rather than
the pre-2007 definition of rape as “by force and without
consent,” the FY 2006 NDAA sought to establish various
gradations of culpability associated with sexual crimes. This
was refined further in the current version of Article 120, UCMJ.

     The concept of a victim being incapable of consent due to
intoxication has long been proscribed criminal conduct within
the military. See United States v. Grier, 53 M.J. 30, 33
(C.A.A.F. 2000) (holding no instructional error where military
judge instructed the members that if victim is incapable of
consenting due to intoxication, “no greater force is required
that that necessary to achieve penetration”); United States v.
Mathai, 34 M.J. 33, 36 (C.M.A. 1992) (holding that evidence of
rape was sufficient where the record established that the victim
was unconscious due to alcohol intoxication, “and that [Mathai]

7
  See National Defense Authorization Act for Fiscal Year 2012 (FY12 NDAA).
Article 120(b)(3) became effective for offenses committed on or after 28 June
2012. See FY12 NDAA, Pub.L. No. 112-81, 125 Stat. 1298, 1404-07 (2011).


                                     13
reasonably knew or should have known that she had not
consented”); MCM, Part IV, ¶45c(1)(b) (2005 ed.).8

     The appellant argues that because the phrase “incapable of
consenting to the sexual act” is not further defined, the
statute is unconstitutionally vague. We disagree. First, this
argument ignores the remainder of Article 120(b)(3): that the
accused knew or reasonably should have known that the victim was
incapable of consenting. We find nothing vague about the
statute, and the requirement to prove actual or constructive
knowledge on the part of the appellant further serves to negate
his claim of vagueness. Second, to the extent the appellant’s
argument addresses “close cases” with regard to level of
intoxication, that argument “is addressed, not by the doctrine
of vagueness, but by the requirement of proof beyond a
reasonable doubt.” United States v. Williams, 553 U.S. 285, 306
(2008) (citing In re Winship, 397 U.S. 358, 363 (1970)).

     Based the plain text of Article 120(b)(3), UCMJ, and
military jurisprudence that has traditionally interpreted
virtually identical conduct, we find that service members of
ordinary intelligence have “fair notice of what is prohibited.”
Id. at 304. We readily conclude that one who engages in sexual
intercourse with another who is unconscious due to alcohol
intoxication could be prosecuted if the individual who initiated
the sexual act knew, or should have known, that the other person
was unconscious. See Vaughan, 58 M.J. at 31 (holding that “fair
notice” for purposes of evaluating vagueness claims may include
the Manual, “military case law, military custom and usage, and
military regulations”). Additionally, we find that Article
120(b)(3) is not so “standardless that it authorizes or
encourages seriously discriminatory enforcement.” Williams, 553
U.S. at 304. Accordingly, the appellant has not met his burden
of establishing error, let alone plain and obvious error.

        Maximum Punishment for Article 120(b)(3) Conviction

     In his sixth AOE, the appellant argues that the military
judge erred when he calculated thirty years’ confinement as the
maximum punishment for sexual assault under Article 120(b)(3),



8
  “Consent, however, may not be inferred if resistance would have been futile,
where resistance is overcome by threats of death or great bodily harm, or
where the female is unable to resist because of lack of mental or physical
faculties.” MCM, Part IV, ¶45c(1)(b) (2005 ed.).


                                     14
UCMJ.9 At the time of his misconduct, the appellant argues, the
President had not defined maximum punishment limitations under
Article 120, UCMJ. Therefore, he contends, the maximum
punishment at his trial was limited to the jurisdictional
maximum of a summary court-martial. Appellant’s Brief at 26.
We disagree.

     Assuming that the appellant did not affirmatively waive
this issue by specifically conceding on the record that the
maximum punishment for the sexual assault was thirty years,
Record at 375, we conclude that the military judge correctly
concluded that the maximum punishment was thirty years. See
United States v. Booker, 72 M.J. 787, 807 (N.M.Ct.Crim.App.
2013), appeal denied, 73 M.J. 92 (C.A.A.F. 2013) (summary
disposition).10

                       Unlawful Command Influence

     In his seventh AOE, the appellant argues that his trial was
infected by unlawful command influence (UCI) based on certain
comments made in April 2012 by the Commandant of the Marine
Corps during a series of lectures he gave at Marine Corps
installations known as the “Heritage Brief.” The appellant
argues that we must set aside his sexual assault conviction due
to the impact of apparent UCI because the military judge is a
Marine Corps officer “under the authority of the [C]ommandant.”
Appellant’s Brief at 29.

     We disagree and hold that the appellant has failed to meet
his burden of production to demonstrate either actual or
apparent UCI, as he has failed to show “proximate causation
between the acts [allegedly] constituting [UCI] and the outcome
of the court-martial.” United States v. Biagase, 50 M.J. 143,
150 (C.A.A.F. 1999) (citing United States v. Reynolds, 40 M.J.
198, 202 (C.M.A. 1994)). The appellant provides no evidence to
support his claim short of identifying the military judge as a
Marine Corps officer. We have no reason to believe that the
military judge was affected by the appellant’s claim of UCI and
we will not presume otherwise.11 United States v. Rivers, 49
9
  The military judge sua sponte merged the sexual assault conviction and the
adultery conviction for sentencing purposes. Record at 374.
10
  The appellant acknowledges that our recent decision in Booker controls;
however, he raises this AOE solely to preserve the issue. Appellant’s Brief
at 26.
11
   The appellant raised UCI at trial but focused solely on the potential
impact on the panel. AE II. After ordering some prophylactic measures, the
                                     15
M.J. 434, 443 (C.A.A.F 1998); see United States v. Phillips, 70
M.J. 161, 166 (C.A.A.F 2011) (holding that “[w]hen the military
judge sits as the trier of fact, we presume that the military
judge knows the law and applied it correctly”) (citing Robbins,
52 M.J. at 457).

                                 Conclusion

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

     Chief Judge MITCHELL and Judge MCDONALD concur.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




military judge deferred ruling on the motion to include the appellant’s
request for additional peremptory challenges. Record at 57-60. When the
appellant elected to be tried by military judge alone, the military judge
noted that the “motion for unlawful command influence, and appropriate
remedy, which was not the dismissal the defense was requesting, but
additional peremptory challenges is no longer before this court since it’s
been overcome by the forum selection.” Id. at 99. The appellant took no
issue with this ruling. At no time did the appellant raise an issue
concerning any prejudicial impact on the military judge that flowed from the
Commandant’s Heritage Brief comments.
                                     16
