UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JACOB L. PEASE

INFORMATION SYSTEMS TECHNICIAN SECOND CLASS (E-5), U.S. NAVY

NMCCA 201400165

GENERAL COURT-MARTIAL

Sentence Adjudged: 13 December 2013.

Military Judge: CAPT J.K. Waits, JAGC, USN.

Convening Authority: Commander, Navy Region Europe, Africa, 

Southwest Asia, Naples, Italy.

Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC, 

USN.

For Appellant: Eric Montalvo, Esq., Civilian Defense 

Counsel; Lt Carrie E. Theis, JAGC, USN.

For Appellee: LT Amy L. Freyermuth, JAGC, USN; Capt Matthew 

M. Harris, USMC.

14 July 2015

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PUBLISHED OPINION OF THE COURT 

---------------------------------------------------

BRUBAKER, Senior Judge:

A panel of members with enlisted representation sitting as 

a general court-martial convicted the appellant, contrary to his 

pleas, of two specifications of fraternization in 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, Uniform Code of Military Justice, 10 U.S.C. 

§§ 892 and 920. The members sentenced the appellant to six 
2

years’ confinement and a dishonorable discharge. The convening 

authority approved the sentence as adjudged. 

The appellant now raises five assignments of error (AOE):

1. The military judge improperly applied Military 

Rule of Evidence 413 to charged misconduct;

2. The evidence is legally and factually 

insufficient;

3. The military judge erred in failing to give a 

requested instruction;

4. Article 120 is unconstitutionally vague; and

5. The military judge abused his discretion in 

admitting expert testimony. 

After carefully considering the record of trial and the 

pleadings and oral arguments of the parties, we find the sexual 

assault and sexual contact convictions factually insufficient. 

Arts. 59(a) and 66(c), UCMJ. Having considered the appellant’s 

assertion that the fraternization convictions were legally and 

factually insufficient, we find they are legally and factually 

sufficient and affirm them. United States v. Clifton, 35 M.J. 

79, 81-82 (C.M.A. 1992). The remaining AOEs are mooted by our 

decision. 

Factual Background

At all relevant times, the appellant, Information Systems 

Technician Seaman (ITSN) S.K.,1 and Information Systems 

Technician Second Class (IT2) B.S. were stationed in the radio 

division of the communications department aboard the USS MOUNT 

WHITNEY (LCC 20), homeported in Gaeta, Italy. The appellant was 

a work center supervisor within the division and, as such, had 

task-related assignment and supervisory authority over ITSN S.K. 

and IT2 B.S.2

 ITSN S.K. and IT2 B.S. alleged that, in separate 

 

1

 By the time of trial, ITSN S.K. had been promoted; however, for simplicity, 

we shall refer to her by her rank at the time of the allegation. 

2

 According to ITSN S.K., the appellant was just below the division lead 

petty officer and as such “[r]an the shop,” Record at 470, including reading 

the plan of the day, taking daily muster, and being in charge of other daily 

activities within the work center.
3

incidents, the appellant sexually assaulted them. We address 

each incident in turn. 

ITSN S.K. 

On 6 December 2012, ITSN S.K., who had only recently 

reported aboard the MOUNT WHITNEY, went out in town with some 

shipmates. Although she was neither able to recall the type or 

quantity of alcohol she consumed, nor how much or when she ate 

that day, she did remember that they started at a bar called 

“The Dutch.” ITSN S.K. reported she began feeling “tipsy”3 while 

at “The Dutch.” The group then went to another bar called 

“Anna’s.” On the way, ITSN S.K. encountered the ship’s shore 

patrol consisting of Chief Warrant Officer 3 (CWO3) G.B.——who 

happened to be the division officer for the appellant and the 

two complainants——and Information Systems Technician First Class 

(IT1) J.V. According to both CWO3 G.B. and ITSN S.K., the 

former issued a generic warning to the effect to behave 

themselves and that he did not want to see ITSN S.K. “out all 

night.”4

 

Once at “Anna’s,” ITSN S.K. drank beer and shots of hard 

liquor and began to feel “drunk, blurry, starting to get --

everything started to get hazy.”5

 She continued to walk back and 

forth between “Anna’s” and a third bar, “Monique’s,” located a 

few storefronts away. Sometime later, ITSN S.K. had a second 

encounter with shore patrol, and at this point it is 

uncontroverted she was ordered back to the ship. 

CWO3 G.B. testified that while on shore patrol, he would 

make “conservative calls,”6 erring on the side of caution 

regarding when to direct Sailors to return to the ship——

particularly for Sailors within his own division. On the 

evening in question, he directed ITSN S.K. to return to the ship 

because “when I looked at her, I could tell that she had been 

drinking pretty heavily . . . . I’m not an expert by any means, 

but I mean I can tell, based on my experience, when they are 

getting to that point, and I thought that [ITSN S.K.] was 

 

3

 Record at 475. 

4 Id. at 479. IT1 J.V., however, recalled that during this encounter, ITSN 

S.K. was “stumbling,” and that CWO3 G.B. ordered her back to the ship at that 

point, an order ITSN S.K. did not obey. Id. at 437.

5

 Id. at 479.

6 Id. at 905-06.
4

getting to that point.”7 He reported, however, that she was 

aware of her surroundings, able to engage in conversation, and 

able to walk without falling. IT1 J.V. corroborated this second 

encounter with shore patrol, but recalled ITSN S.K. appeared 

even more intoxicated than during the first, noting that she was 

leaning on another female for support because she was “wobbling 

and using [her] to stand up.”8

 

According to CWO3 G.B., although he told ITSN S.K. to 

return to the ship, he ran into her again later that evening at 

“Anna’s.” He asked why she had not returned to the ship, and 

she replied she was looking for her pocketbook, which she left 

at “Monique’s.” CWO3 G.B. then escorted her to “Monique’s” to 

retrieve the purse. At this point, she recalled “swaying and 

trying to concentrate,”9 but CWO3 G.B. indicated she was aware of 

her surroundings and able to walk and talk without difficulty. 

CWO3 G.B. testified that as they left “Monique’s” they 

encountered the appellant, whom CWO3 G.B. directed to escort 

ITSN S.K. back to the ship.10 IT1 J.V., in a slightly different 

recollection, stated he observed ITSN S.K. speaking to the 

appellant at the bar for approximately five minutes and the 

appellant thereafter volunteered to walk ITSN S.K. back to the 

ship.11 The only other witness to testify to the level of ITSN 

S.K.’s intoxication that evening stated she interacted with ITSN 

S.K. briefly throughout the night and she was not “fall-down 

drunk.”12

CWO3 G.B. and IT1 J.V. decided to walk back to the ship 

themselves and followed ITSN S.K. and the appellant. They 

observed ITSN S.K. able to walk on her own without falling or 

stumbling. They witnessed her navigate the gate, negotiate the 

ladder well, request and obtain permission to come aboard, and 

scan her identification without any issue. At this point, CWO3 

G.B. and IT1 J.V. parted from ITSN S.K. and the appellant. 

 

7 Id. at 909.

8 Id. at 441. 

9 Id. at 480. 

10 Id. at 911.

11 Id. at 442-43.

12 Id. at 669. 
5

ITSN S.K. and the appellant proceeded from the quarterdeck 

to the smoke deck. ITSN S.K. testified she only remembered 

flashes of the rest of the evening. She recalled being on the 

smoke deck smoking a cigarette, telling the appellant she 

thought “he was cute” and that they kissed.13 The next thing 

ITSN S.K. remembered was being “in the JOC14 having sex.”15 ITSN 

S.K. recalled that she was lying back on a table and holding her 

weight up by propping her elbows on the table. The appellant 

was standing in front of her while they engaged in vaginal 

intercourse. She testified at trial——although she had not 

reported this in previous statements or testimony——that 

afterward, “he smacked my face and kept hold of it and like 

focused my attention on him and said, ‘Don’t tell –- don’t ever 

tell anyone.’”16 Her next memory was waking up in the morning in 

her rack in berthing. 

Once awake, ITSN S.K. couldn’t find her identification card 

or purse, but noted a condom wrapper in her clothes. She “could 

tell that I’d had sex, and I just remember knowing it had 

happened . . . .”17 She approached Operations Specialist Second 

Class (OS2) T.B., a social acquaintance and officer of the deck 

that morning, to ask how she could report her lost items. 

According to OS2 T.B., ITSN S.K. indicated she had been “messing 

around or fooling around”18 with someone in the JOC the previous 

night. She thought the purse and identification might be there, 

but did not know the combination and said it would be 

embarrassing to go ask the person she was with to let her back 

into the JOC. To him, she was not flustered and appeared happy, 

normal, and sober. 

ITSN S.K. eventually found her identification card and met 

up with her shipmates to attend a unit-sponsored event. A 

friend, Information Systems Technician Third Class (IT3) D.F., 

reported ITSN S.K. was late but seemed fine, coherent, “happy 

and her normal self.”19 He also testified that ITSN S.K. told 

 

13 Id. at 482-83. 

14 The Joint Operations Center is frequently referred to as the JOC. 

15 Record at 483.

16 Id. at 486. 

17 Record at 488. 

18 Id. at 1004. 

19 Id. at 1018.
6

him in a normal demeanor that she had sex with the appellant the 

night before. However, in cross-examination, IT3 D.F. conceded 

that she also said, “What’s wrong with me?” and “Why did I do 

that?”20 A few days later, ITSN S.K. again told IT3 D.F. that 

she had sex with the appellant and thought he was cute. 

ITSN S.K. did not report she had been assaulted until 26 

January 2013. 

IT2 B.S.

IT2 B.S. reported to USS MOUNT WHITNEY in early January 

2013 and was assigned to the radio division in the 

communications department. The appellant was her work center 

supervisor. She also worked with and befriended ITSN S.K. IT2 

B.S. was engaged to another Sailor stationed in Norfolk, 

Virginia. 

On 25 January 2013, IT2 B.S. went out in town with some 

shipmates. After stopping at the apartment of a friend, IT2 

S.B., the group went to “The Dutch” for dinner. There, IT2 B.S. 

ate dinner and consumed two “shooters,” which she described as 

“two or three more sizes than a shot.”21 The group next moved to 

a bar which was a long walk from “The Dutch,” where IT2 B.S. 

consumed one Red Bull and vodka. They then went to another pub 

where IT2 B.S. consumed another Red Bull and vodka. Next, IT2 

B.S. and IT2 S.B. returned to IT2 S.B.’s apartment to change 

clothes before they rejoined their friends and then walked to 

“Anna’s.” IT2 B.S. stated that when she arrived at “Anna’s” she 

felt “tipsy.”22 She does not remember if she drank any more 

alcohol while she was there, but did recall seeing the appellant 

there and conversing with him. 

IT2 S.B. testified that while IT2 B.S. was at “Anna’s” she 

was “feeling pretty good,”23 but wasn’t slurring her words or 

stumbling. He did not believe she was drunk and when she left 

the bar, she was fine and was not falling or stumbling. At that 

point, IT2 S.B. left the group and went home. A different 

witness out that night reported seeing IT2 B.S. with her arm 

interlocked with the appellant while at “Anna’s.”

 

20 Id. at 1024-25. 

21 Id. at 581. 

22 Id. at 475. 

23 Id. at 976. 
7

Next, IT2 B.S. and her shipmates went to “Monique’s.” The 

appellant did not go to “Monique’s,” so he and IT2 B.S. parted 

ways. IT2 B.S. remembered having at least one shot and one 

drink at “Monique’s.” She reported being very drunk and 

starting to experience memory loss. She recalled dancing with 

another shipmate outside of “Monique’s,” and then leaning 

against the wall and smoking a cigarette.

IT3 H.W. testified she saw IT2 B.S. outside of “Monique’s”

trying to light a cigarette backwards “and that’s when I noticed 

that she was kind of drunk.”24 IT3 H.W. brought IT2 B.S. a 

bottle of water, which she drank. Asked what IT2 B.S.’s 

demeanor was like at that point, IT3 H.W. responded, “I mean she 

seemed a little drunk, but overall she seemed fine, 

functional.”25

While IT2 B.S. and IT3 H.W. were outside of “Monique’s,”

CWO3 G.B., again acting as shore patrol, arrived at the bar and 

witnessed IT2 B.S. leaning up against the wall drinking a bottle 

of water. While inside dealing with an unrelated matter, 

another Sailor told him that IT2 B.S. “had been drinking pretty 

heavily.”26 After finishing with the other matter, CWO3 G.B. 

told IT2 B.S. that she needed to return to the ship and directed 

IT3 H.W. to accompany her back. He reported that IT2 B.S. was 

able to speak with him, walk on her own, and was not stumbling. 

The other member of shore patrol that evening also saw IT2 

B.S. leaning against the wall and was present when CWO3 G.B. 

ordered her back to the ship. He described her as compliant and 

quiet and testified that “[w]hen she walked away, I didn’t see 

any stagger in the walk or anything of that nature. She may ---

and so I’m not exactly sure what her level of drunkenness was.”27

As IT3 H.W. was walking IT2 B.S. back to the ship, they 

encountered the appellant. IT3 H.W. wanted to return to the bar 

with her friends, so the appellant volunteered to accompany IT2 

B.S. back to the ship. No other witnesses observed IT2 B.S. for 

the rest of the evening. 

 

24 Id. at 660-61. 

25 Id. at 662-63. 

26 Id. at 915. 

27 Id. at 573.
8

IT2 B.S. recalled that while walking back to the ship with 

the appellant, she told him she wanted to stay out and party.28

She recalled having her arm interlocked with the appellant’s and 

recognizing a café they walked past. She only remembered 

fragments of the evening thereafter. 

The next thing IT2 B.S. recalled is the appellant engaging 

in anal sex with her. She felt pain and told him to stop, which 

he did. B.S. then became sick, vomiting on the bed, and got up 

to clean herself off and go to the bathroom. As she did this, 

she recognized the apartment she was in as one she had visited 

prior to that evening. She went to the bathroom and turned on 

the shower to rinse herself off. Her next memory was being on 

the floor of the bathroom naked with the appellant banging on 

the hatch. She recalled feeling very cold and sick and returned 

to the bed to get under the covers. She recalled that at some 

point she got out of bed and went to the kitchen to get water. 

IT2 B.S. reported various fragmented memories following the 

shower. She remembered engaging in vaginal sexual intercourse 

and sexual conduct in various positions, including being on top 

of the appellant, lying on her side, and being on her hands and 

knees with the appellant entering her from behind. She reported 

at one point while she was on top, the appellant bit her nipple. 

This caused her pain, so she told him to stop, which he did. 

She also recalled performing fellatio on the appellant while he 

lay on his back. 

IT2 B.S. admitted she enjoyed certain portions of the sex, 

stating, “I recall telling [the Naval Criminal Investigative 

Service] about the doggie style and it was vaginal and I --- I 

do recall telling them that I enjoyed it and that I --- I did 

for the moment that I --- I woke up or, you know, had the next 

memory I did enjoy it for that.”29 After being asked, “Does that 

mean it felt good?” she responded, “That night, yes, for those 

moments, yes, after the next day, no.”30 

IT2 B.S. recalled the appellant directing her not to tell 

anyone what had happened, specifically mentioning ITSN S.K., and 

finally recalled falling asleep with the appellant “caressing 

 

28 Id. at 631.

 

29 Id. at 650. 

30 Id.
9

her arm.”31 She had no indication of the times that all these 

events happened.

The next morning, IT2 B.S. was awakened by another petty 

officer from the ship sent to retrieve her. The appellant had 

already departed. She got dressed, asked if “she had any 

hickies,”32 and was concerned she was going to be in trouble for 

not returning to the ship the previous evening. 

Upon returning to the ship, her chief petty officer and a 

lieutenant verbally counseled IT2 B.S. regarding her alcohol use 

and making a good impression on the ship as a newly reported 

Second Class Petty Officer. Afterwards, IT2 B.S. showered and 

went to sleep. 

IT2 B.S. was awakened in the afternoon by ITSN S.K., who 

had heard she had not returned to the ship the previous evening. 

Eventually, IT2 B.S. told ITSN S.K. about what had transpired 

between her and the appellant. ITSN S.K. then relayed to IT2 

B.S. what had happened between herself and the appellant the 

previous month. They decided IT2 B.S. should report she had 

been assaulted. After IT2 B.S. finished her report to a victim 

advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged 

assault as well. 

Expert Testimony

Each party sponsored an expert witness to discuss levels of 

intoxication and the effects of alcohol. Dr. Bruins, a forensic 

toxicologist from the Air Force Drug Testing Laboratory, 

testified for the Government in broad terms about how the human 

body processes alcohol, the meaning of blood alcohol content 

(BAC), and, using what is known as the Dubowski chart, the 

stages of alcohol influence given ranges of BAC. Dr. Bruins did 

not, however, feel comfortable calculating a BAC for either 

complainant. Regarding ITSN S.K., he stated “there was just 

very little information on the type -- you have to know the type 

of alcohol, whether it’s beer, wine or distilled spirits because 

they vary in alcohol content. You have to know the individual’s 

body weight. You have to know their drinking history and more 

importantly, you have to know a timeline and so with the 

 

31 Id. at 649-50. 

32 Id. at 603.
10

situation with [ITSN S.K.], I – that information was not 

available.”33

Regarding IT2 B.S., Dr. Bruins testified “there was 

information available, there was the ability to piece part of 

this together, but there were several missing gaps.”34 These 

gaps again included type and amount of alcohol and timeline.

Dr. Bruins testified that BAC levels continue to rise for 

30 to 60 minutes after the last drink is consumed. He also 

discussed the distinction between blackout——memory loss——versus 

pass out——unconsciousness. The higher a person’s BAC, the more 

likely he will experience blackout. A person experiencing 

blackout could, however, still be functioning and responsive to 

others; their brain just is not recording memories. Prompted by 

the trial counsel, Dr. Bruins opined that “an ordinary, normal 

person can observe these effects and have the suggestion or 

opinion that something is going on with that individual and that 

they may be under the influence of something.”35

The defense called Dr. Fromme, a professor of clinical 

psychology at the University of Texas, Austin. Dr. Fromme 

conducts research and teaches classes on the effects of alcohol 

and possesses significant credentials in the area of alcohol 

research. Her professional focus is “on alcohol use and the 

effects of alcohol intoxication with specific focus on alcohol 

related blackouts, the effects of alcohol intoxication on 

behavior such as sexual risk taking.”36

Dr. Fromme testified that “[a]t higher doses of alcohol as 

people become progressively more intoxicated, they might begin 

to act in reckless, aggressive or even sexually provocative 

ways.”37 Dr. Fromme explained another effect of alcohol that she 

referred to as “alcohol myopia” — a focus on immediate effects 

and disregard for long-term consequences. Dr. Fromme also 

addressed alcohol-related blackout, stating that during 

blackout, an individual:

 

33 Id. at 735.

34 Id. 

35 Id. at 748. 

36 Id. at 1082. 

37 Id. at 1085. 
11

is still fully conscious. They’re moving around, 

acting, engaging, talking, dancing, driving, engaging 

in all kinds of behavior, but because of alcohol’s 

inhibition of the transfer of information from shortterm memory to long-term memory, they simply will be 

unable to remember those decisions or actions they 

made while in the blackout.38

Pass-out, on the other hand, typically occurs at BACs of 

0.30 or higher and occurs when the level of alcohol reaches such 

a high level “that the part of the brain that controls 

consciousness has literally shut down, so those individuals have 

lost consciousness”39 and would not easily be roused. 

Dr. Fromme stated that a person in a black-out state can 

still be able to engage in voluntary behavior and thought 

processes. “They might make decisions, for example, to drive 

home from a bar, or to climb onto the roof of a building, or to 

purchase an airline ticket online, all activities which require 

complex cognitive abilities, but the individual might not 

remember the next day and might, in fact, might regret it.”40

Analysis

Under Article 66(c), UCMJ, we conduct a de novo review of 

factual sufficiency of each case before us. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for 

factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having 

personally observed the witnesses,” we are ourselves convinced 

of the accused's guilt beyond a reasonable doubt. United States 

v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “Such a review 

involves a fresh, impartial look at the evidence, giving no 

deference to the decision of the trial court on factual 

sufficiency beyond the admonition in Article 66(c), UCMJ, to 

take into account the fact that the trial court saw and heard 

the witnesses.” Washington, 57 M.J. at 399. Proof beyond a 

reasonable doubt does not mean, however, that the evidence must 

be free from conflict. United States v. Goode, 54 M.J. 836, 841 

(N.M.Ct.Crim.App. 2001). 

 

38 Id. at 1087. 

39 Id. at 1087-88. 

40 Id. at 1094. 
12

Common elements for both sexual assault and abusive sexual 

contact as charged in this case are that the complainants were, 

at the time of the sexual conduct in question, incapable of 

consenting to the conduct due to impairment by an intoxicant and 

that the appellant knew or reasonably should have known this. 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶¶ 45b

and 45d. After careful deliberation, and accounting for the 

fact that we did not personally observe the witnesses, we are 

not ourselves convinced that the Government proved these 

elements beyond a reasonable doubt. 

Our conclusion has nothing to do with the sincerity or 

credibility of either complainant. It turns, instead, on the 

high burden the Government carries in a criminal case and an 

issue the record shows the members struggled with: how impaired 

does a person have to be before they are “incapable of 

consenting”? 

The short answer is our interpretation of the law applied 

to our assessment of the facts in this case leaves us with 

reasonable doubt that the complainants were legally “incapable 

of consenting” as well as reasonable doubt that the appellant 

knew or reasonably should have known they were incapable of 

consenting. 

There is a dearth of case law interpreting the phrase 

“incapable of consenting” and the breadth of the current Article 

120. But, in a search for meaning, we need look no further than 

the words of the statute itself. See United States v. Ron Pair 

Enters., 489 U.S. 235, 240-41 (1989) (“as long as the statutory 

scheme is coherent and consistent, there generally is no need 

for a court to inquire beyond the plain language of the 

statute”). 

After enumerating that it is a crime to commit sexual acts 

or contact upon a person incapable of consenting, Article 120 

defines “consent” as “a freely given agreement to the conduct at 

issue by a competent person” and goes on to state that a 

“sleeping, unconscious, or incompetent person cannot consent.” 

Art. 120(g)(8), UCMJ. Reading these provisions together, to 

prove a violation of Article 120(b) or (d), the Government must 

prove that a listed condition rendered the complainant incapable 

of entering a freely given agreement. Here, the terms 

“competent” and “incompetent” in the definitions section merely 

refer back to the punitive language regarding those incapable of 

consenting; it adds no further punitive exposure. Thus, in this 

context, a “competent” person is simply a person who possesses 
13

the physical and mental ability to consent. An “incompetent” 

person is a person who lacks either the mental or physical 

ability to consent due to a cause enumerated in the statute. 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. 

Applying that interpretation to this case, we are not 

convinced beyond a reasonable doubt that the complainants were 

incapable of consenting——that is, that they lacked the cognitive 

ability to appreciate the sexual conduct in question or the 

physical or mental ability to make and to communicate a decision 

about whether they agreed to the conduct. Additionally, even if 

we were to conclude that they were “incapable of consenting,” we 

conclude that under the facts of this case, the Government did 

not prove beyond a reasonable doubt that the appellant knew or

reasonably should have known of this condition. We base this on 

the totality of the record under the unique circumstances of 

this case, but we address some of the specific issues that cause 

us doubt below. 

As the Government’s own expert highlighted, the 

complainants themselves were only able to provide limited 

insight into what, how much, and over what period of time they 

consumed alcohol. There were no blood alcohol tests in evidence 

and witnesses who observed the complainants largely minimized 

their level of intoxication. The Government was often forced to 

attempt to impeach their own witnesses——somewhat unpersuasively 

in our opinion——on supposedly contradictory statements they had 

made on this point. 

Regarding ITSN S.K., two impartial witnesses observed her 

walk back to the ship with the appellant without any apparent 

difficulty, navigate the gate and ladder well, request 

permission to come aboard, and scan her identification card. 

While she was intoxicated enough that CWO3 G.B. singled her out 

and ordered her back to the ship, this, standing alone, does not 

prove she was sufficiently impaired that she was incapable of 

consenting to sexual activity. Further, ITSN S.K. herself 

conceded in cross-examination that she may have said “yes” to 

the sexual intercourse, and just could not remember doing so. 

We think this more than a mere speculative possibility here. 

Under these circumstances, her fragmentary memory of kissing the 

appellant and telling him he was cute, then of being propped up 

supporting her own weight on her elbows having sexual 
14

intercourse with him does not persuade us beyond a reasonable 

doubt that somewhere in between, she had become manifestly 

unaware of what was happening or unable to make or to 

communicate decisions. 

Similar concerns apply to IT2 B.S. She was able to recall 

making the decision to “stay out and party” despite being aware 

of shore patrol’s order to return to the ship.41 She conceded 

during cross-examination that she knew she had been ordered 

back, was able to formulate the thought that she wanted to stay 

out instead, and was able to decide and to communicate that she 

wanted to stay out. As with ITSN S.K., she had only fragmentary 

memory from there, but she remembered that when certain 

activities were painful or unpleasant, she was able to determine 

that she did not want that activity to continue and to 

articulate that to the appellant, who stopped. She further 

candidly related active participation in and even enjoying 

portions of the sexual activity. 

In addition to not supporting the conclusion that ITSN S.W. 

and IT2 B.S. were “incapable of consenting,” we view this as 

evidence supporting the conclusion that the appellant reasonably 

may have believed that they were willing partners in sexual 

activity. Under these and all circumstances in the record, we 

are not convinced beyond a reasonable doubt that the appellant 

knew or reasonably should have known that she was incapable of 

consenting. 

Conclusion

The findings of guilty to Charge I and its Specifications 1 

through 3 and 5 are set aside and Charge I and its 

Specifications 1 through 3 and 5 are dismissed. The findings of 

guilty of Charge II and its specifications (fraternization) are 

affirmed. Because this represents “a ‘dramatic change’ in the 

penalty landscape” and we cannot reliably determine what 

sentence the members would have imposed for the remaining 

fraternization offenses, United States v. Riley, 58 M.J. 305, 

312 (C.A.A.F. 2003), we also set aside the sentence. The record 

is returned to the Judge Advocate General of the Navy for remand 

 

41 Id. at 631. 
15

to an appropriate convening authority with a rehearing on 

sentence authorized. Art. 66(d), UCMJ. 

Chief Judge MITCHELL and Judge HOLIFIELD concur. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court