UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

YOB,

1 LIND, and KRAUSS

Appellate Military Judges

UNITED STATES, Appellee

v.

Private E2 CURTIS R. LONG

United States Army, Appellant

ARMY 20120114

Headquarters, Fort Carson

Mark A. Bridges, Military Judge

Colonel Randy T. Kirkvold, Staff Judge Advocate

For Appellant: Captain Brian J. Sullivan, JA (argued); Colonel Patricia A. Ham, JA; 

Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain 

Brian J. Sullivan, JA (on brief). 

For Appellee: Captain Timothy C. Erickson, JA (argued); Major Katherine S. 

Gowel, JA; Major Alison L. Gregoire, JA (on brief).

30 January 2014

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OPINION OF THE COURT

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KRAUSS, Judge:

A general court-martial composed of officer and enlisted members convicted 

appellant, contrary to his pleas, of one specification of rape by using force in 

violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. §920 (2006 & 

Supp. IV) [hereinafter UCMJ]. The court-martial acquitted appellant of one 

specification of aggravated sexual assault by causing bodily harm and one 

specification of assault consummated by a battery alleged under Articles 120 and 

128, UCMJ, 10 U.S.C. §920, 928 (2006 & Supp. IV). Prior to these contested 

charges, appellant pleaded guilty to one specification of a violation of a lawful 

 

1

Senior Judge Yob took action in this case prior to his permanent change of duty 

station.
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2

general regulation for underage drinking in violation of Article 92, UCMJ, 10 U.S.C. 

§892 (2006). The panel sentenced appellant to a bad-conduct discharge and 

confinement for one year. The convening authority approved the adjudged sentence. 

This case is before the court for review under Article 66, UCMJ. Appellant

argues the military judge erred by providing the panel a definition of competence to 

complement instructions regarding the affirmative defense of consent and thereby 

improperly introduced a theory of criminality that was not charged , rendering his 

conviction unreliable. We disagree with appellant and conclude the judge 

appropriately provided a definition of “competent person” in response to a request 

for such definition from the panel and despite appellant’s objection . We find the 

military judge’s definition was essentially correct and did nothing to undermine the 

reliability of appellant’s conviction for rape.

2

 

BACKGROUND

Appellant was charged with the rape of SB by penetrating her vulva with his 

penis using strength sufficient that SB could not avoid or escape the sexual conduct. 

Alternatively, the government charged appellant with aggravated sexual assault by 

causing bodily harm by holding SB’s neck, throat, and hands, as well as assault 

consummated by a battery by holding and squeezing SB’s neck, throat, and hands 

with his hands. All allegations were based on the same alleged event.

SB testified that appellant forced himself upon her sexually in a manner 

consistent with the specifications alleged. Although SB testified she was “tired,” 

“drunk,” and “stumbling,” SB never testified she was incapacitated by alcohol or 

fatigue, or that she offered anything other than conscious resistance to appellant’s 

sexual advances and efforts. That resistance included telling appellant “no,” to 

“stop,” and kicking and pushing appellant away from her. She did testify that while 

appellant assaulted her, she was “dizzy,” “was still feeling sick from before,” and 

that her consumption of alcohol made it more difficult to resist. The government 

also introduced evidence of appellant’s admission to a CID agent that SB said “no”

and that she “didn’t want to do this” before appellant committed sexual acts upon 

her. 

Though the government presented evidence of SB’s intoxication and 

appellant’s knowledge of and exploitation of her drunken and sickened state, the 

government consistently presented its case as one of rape by force throughout the 

proceedings. 

 

2 Appellant also raises matters pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), which merit neither discussion nor relief.
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3

Appellant presented a defense of consent and false accusation.

3

 Through 

cross-examination of the victim and direct examination of a witness present at the 

scene of the alleged offense, the defense disputed SB’s contentions that she resisted 

and refused consent. 

There were no objections to the judge’s initial provision of instructions,

which included all standard instructions relevant to the charges alleged and the 

affirmative defenses of consent and mistake of fact as to consent. The instructions 

on rape by using force included the necessity to find appellant penetrated SB’s vulva 

by force as alleged, that being “strength sufficient that she could not avoid or escape 

the sexual conduct.” The judge then defined force as “ an action to compel 

submission of another or to overcome or prevent another’s resistance by physical 

violence, strength, power, or restraint applied to another person, sufficient that the 

other person could not avoid or escape the sexual act.” The judge later instructed: 

The evidence has raised the issue of whether [SB]

consented to the sexual act concerning the offenses of rape 

and aggravated sexual assault, as alleged in Specifications 

1 and 2 of Charge I. 

Evidence of consent is relevant to whether the prosecution 

has proven the elements of the offenses beyond a 

reasonable doubt. 

Consent is also a defense to the offenses of rape and 

aggravated sexual assault, as alleged in Specifications 1 

and 2 of Charge I. 

“Consent” means words or overt acts indicating a freely 

given agreement to the sexual conduct 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 

accused’s use of force, threat of force, or placing another 

person in fear, does not constitute consent. A current or 

previous dating relationship by itself or the manner of 

dress of the person involved with the accused in the sexual 

conduct at issue shall not constitute consent. 

 

3 Appellant secured a mistake of fact instruction but did not offer argument or 

otherwise rely on mistake of fact during findings.
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4

The prosecution has the burden to prove beyond a 

reasonable doubt that consent did not exist. Therefore, to 

find the accused guilty of the offenses of rape and 

aggravated sexual assault, as alleged in Specifications 1 

and 2 of Charge I, you must be convinced beyond a 

reasonable doubt that at the time that [sic] the sexual act 

alleged, SB did not consent.

There was neither objection nor request for additional instructions from either 

party. When the judge asked if any member of the court had any questions, the 

president said: “In your instructions you instructed us that only a competent person 

can give consent. Can you define ‘competence’ legally?” After initiating discussion 

with counsel on the matter, the judge asked the president: “And actually . . . let me 

just clarify; are you asking this question in relation to her state of intoxication at the 

time?” The president responded, “yes, sir” and the judge stated: “Okay, that’s what 

I thought.” The judge then called a hearing outside the presence of the members to 

address the question of further instruction. 

The defense objected to the judge giving any additional instruction “on the 

grounds that [the defense did not] believe that any evidence was produced that 

would warrant giving that definition of consent.” Over defense objection, the judge 

decided to provide the panel a definition of consent. The instruction was taken from 

a note to the military judges’ benchbook under the instruction for aggravated sexual 

contact.4 Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ 

Benchbook [hereinafter Benchbook], para. 3-45-4, n.8 (1 Jan. 2010). At first, the 

judge intended to offer only that portion of the instruction relative to intoxication ,

but he ultimately provided the entire instruction offered in the Benchbook at defense 

counsel’s behest in light of their failed objection. 

The judge stated his reasons for giving the instruction in the Article 39(a), 

UCMJ, hearing: 

I think, as [the president of the panel] has clearly 

indicated, his concern is whether or not somebody who is 

intoxicated or has been drinking is a competent person to 

 

4 We realize the military judge used the “consent” instruc tion for a crime not at issue 

in this case. However, we note that the consent instruction for abusive sexual 

contact is identical to the statutory definition of consent in Article 120, UCMJ, as 

well as the Benchbook’s consent instruction for rape. Compare Benchbook, para. 

3-45-4, n.8, with Manual for Courts-Martial (2008 ed.) [hereinafter MCM], Pt. IV, 

¶ 45.a(t)(14) and Benchbook, para. 3-45-3, n.10.
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give consent. So, I think that this instruction that I 

propose to give helps the members understand what 

someone’s level of intoxication would mean with respect 

to consent. 

I think if I don’t give the instruction the members are 

going to be left hanging in the wind to decide whether or 

not somebody who is drunk can consent. I mean this 

instruction makes clear that somebody who is drunk can 

consent, as long as they’re not substantially incapable of 

understanding the conduct at issue. So, I think it is a 

helpful instruction and that’s why I’m going to give it to 

the members.

The judge proceeded to reiterate to the panel the instruction on consent,

adding: 

A person cannot consent to sexual activity if that person is 

substantially incapable of appraising the nature of the 

sexual conduct at issue, due to mental impairment or 

unconsciousness resulting from consumption of alcohol, 

drugs, a similar substance, or otherwise; substantially 

incapable of appraising the nature of the sexual conduct at 

issue due to mental disease or defect, which renders the 

person unable to understand the nature of the sexual 

conduct at issue; or substantially incapable of physically 

declining participation in the sexual conduct at issue; or 

substantially incapable of physically communicating an 

unwillingness to engage in the sexual conduct at issue. 

The court-martial convicted appellant of rape by force and acquitted him of 

aggravated sexual assault and assault consummated by a battery.

LAW AND ANALYSIS

First, we find the military judge did not err by providing a definition of 

“competent person” in response to the president’s query. Second, we hold the 

definition provided was correct though not entirely complete. Third, we find the 

judge did not introduce a theory of criminal liability upon which the court-martial 

might improperly convict. 

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) (citing United 

States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2013)). 
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“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) 

(citing United States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990)). The 

judge “must bear the primary responsibility for assuring that the [panel] properly is 

instructed on the elements of the offenses raised by the evidence as well as potential 

defenses and other questions of law.” Id. (citing Westmoreland, 31 M.J. at 164) 

(citation and quotation marks omitted). It is entirely appropriate for the military 

judge to offer definition of legal terms when prompted by reasonable inquiry from a 

member of the panel. See Westmoreland, 31 M.J. at 163-65; see also Bollenbach v. 

United States, 326 U.S. 607, 611-613 (1946). This is precisely what happened in 

this case when the president of the panel asked the military judge to provide a legal 

definition of “competent person” for the purposes of determining consent to sexual 

activity. 

The evidence raised consent as an issue. The judge had already properly 

instructed on consent. Faced with a panel that expressed uncertainty over definition 

of a term contained in the original instructions, a term fundamental to their decision, 

the judge properly offered a definition of “competent person.” The judge fulfilled 

his obligation to ensure the panel was fully equipped to resolve those questions of 

fact necessary for proper resolution of the charges before them for judgment. 

Whether we agree with the judge’s reasons or whether his impression was a correct 

one or not, competence, in this context, is a legal term of art whose definition is set 

by statute and whose meaning may or may not comport with a member’s 

understanding. It, therefore, warrants proper instruction from the judge. See 

generally United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997) (“The comments 

of the military judge should be considered in the context of the specific question 

raised by the members and the full body of the instructions given by the military 

judge, both at this point in the proceedings and prior to the initial deliberations of 

the members.”).

The judge’s definition drawn from the Benchbook originates in the very 

statute under which appellant was charged and convicted and constitutes the 

definition of competent person, albeit in the negative, for the purposes of that 

statute. MCM, pt. IV, ¶ 45.a(t)(14). Lest there be any doubt, we hold here that the 

statutory definition of a competent person for purposes of Article 120, UCMJ, at the 

time of this case is that provided in paragraph 45.a(t)(14), Part IV, Manual for 

Courts-Martial (2008 ed.) beginning with the phrase “[a] person cannot consent to 

sexual activity if –” and proceeding through to the end of paragraph 45.a(t)(14)(B). 

A full definition of consent includes definition of competence to consent.

MCM, pt. IV, ¶ 45.a(t)(14). See also United States v. Neal, 68 M.J. 289, 297-98 

(C.A.A.F. 2010). A full definition of competence to consent includes reference,

first, to an alleged victim’s age and second, to the alleged victim’s capacity to 

appraise the nature of the sexual conduct at issue, to physically decline participation 
LONG — ARMY 20120114

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in the sexual conduct, and to physically communicate unwillingness to engage in the 

sexual conduct. MCM, pt. IV, ¶ 45.a(t)(14)(A)-(B). While it is better to provide the 

full definition of competence, the judge’s failure to reference the victim’s age does 

not prejudice appellant as there was no dispute that SB was 19 years old at the time 

of the assault. 

There is nothing inconsistent with the definition of competence and the 

offense of rape by using force. Force is defined as “an action to compel submission 

of another or to overcome or prevent another’s resistance by physical violence, 

strength, power, or restraint applied to another person, sufficient that the other 

person could not avoid or escape the sexual act.” MCM, pt. IV, ¶ 45.a(t)(5). See

also United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). Therefore, as long 

as the government proves beyond a reasonable doubt that an accused used such force 

to cause the other person to engage in a sexual act, it does not matter if the other 

person is competent to consent or not. MCM, pt. IV, ¶ 45.a(a)(1). 

Neither the affirmative defense of consent nor its competence component 

obviates or undermines the burden upon the government to prove force in a case 

charged such as this. The instructions provided by the judge on the government’s 

burden to prove force were correct, and there is nothing in the court-martial’s 

findings that provides any basis to doubt the reliability of appellant’s conviction of 

rape by using force.

Appellant was not charged with rape by either rendering SB unconscious or by 

administration of an intoxicant, nor was appellant charged with aggravated sexual 

assault upon a substantially incapacitated person. See MCM, pt. IV, ¶¶ 45.a(a)(4)-

(5), 45.a(c)(2). Though the definition of competence includes reference to 

unconsciousness, there is no danger that an accused charged with rape by using force 

will be unjustly convicted of any of these other offenses. The law as provided in the 

standard instructions ensures that guilt for rape by force comes only where the 

accused compels submission or otherwise overcomes or prevents resistance. The 

risk of conviction on a theory uncharged is therefore based on speculation alone. 

See generally United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000).

There is also no evidence that SB was unconscious when appellant committed 

a sexual act upon her. The evidence in this case establishes that SB was competent; 

that she did not consent; and that she both verbally and physically resisted 

appellant’s sexual conduct. The evidence further includes appellant’s 

acknowledgement that SB said “no” to his sexual advance, that she “didn’t want to 

do this,” and that she brushed his hand away from her breast before he completed the 

sexual act alleged. In that sense, the panel’s findings of guilt comport fully with the 

evidence.
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Any premise that one substantially impaired by alcohol, as contemplated 

under the Article 120 in effect at the time of this case, cannot be the victim of rape 

by force is unpersuasive. Even if a panel faced with a similar situation were to find 

that a person was substantially incapable of appraising the nature of the sexual 

conduct at issue, it can very well find that the person offered resistance to whatever 

bodily harm it was that she did appreciate at the time. In other words, a person who 

is substantially incapable of appraising the nature of the sexual conduct yet able to 

appreciate unwanted physical contact and able to manifest lack of consent one way 

or another may be the victim of a rape by force if, of course, an assailant uses force 

to overcome that resistance. Similarly, even if a panel were to find that a person

was substantially incapable of physically declining participation in sexual conduct , 

it may nevertheless find that the person could effectively articulate declination to 

participate in sexual conduct. And, finally, even if a panel were to find that a person

was substantially incapable of physically communicating unwillingness to engage in 

sexual conduct, it may nevertheless find that the person could otherwise physically 

manifest unwillingness to engage in sexual conduct. In each such case, if an 

assailant uses force as defined, he is subject to conviction for rape. See MCM, 

pt. IV, ¶¶ 45.a(t)(5), 45.a(t)(14)(B).

Therefore, in a case charged as rape by force, if a person is not unconscious 

but substantially incapacitated otherwise, the question for the finder of fact is the 

same as that involving a fully-capable person: Did the accused compel the alleged 

victim’s submission or otherwise overcome or prevent that person’s resistance by 

force as defined under Article 120, UCMJ. If not, the accused is not guilty of rape 

by using force; if so, then the accused is guilty of rape by using force.

“Absent evidence to the contrary, this [c]ourt may presume that members 

follow a military judge’s instructions.” Id. at 198. Whichever way one may 

speculate about what the panel found beyond a reasonable doubt, there is sufficient 

basis in the evidence for conviction. 5 But we need not speculate. SB was 

competent. She refused to consent to sexual conduct with appellant. She verbally 

and physically resisted his efforts to commit sexual acts upon her. Appellant used 

force to overcome that resistance and compel her submission. The evidence is 

 

5

“With minor exceptions for capital cases, a ‘court-martial panel, like a civilian 

jury, returns a general verdict and does not specify how the law applies to the facts, 

nor does the panel otherwise explain the reasons for its decision to convict or 

acquit.’” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (quoting Hardy, 

46 M.J. at 73).
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legally and factually sufficient to establish appellant’s guilt for rape by using force 

and there is nothing illogical or inconsistent about the panel’s findings. 6

While we agree with appellant that there was insufficient evidence to find that 

SB was incompetent in accord with the statutory definition, we consider the defense 

objection to the additional instruction at issue on that ground unpersuasive. The 

evidence raised the issue of consent; the government was required to prove lack of 

consent beyond a reasonable doubt; and the panel was required to decide whether SB

consented to sexual activity. Appellant asserted the defense of consent and 

requested instruction on the matter. Any argument that the defense was somehow 

not on notice of the relevance of competence to consent falls on deaf ears. As 

discussed, competence is an integral aspect of the statutory definition of consent for 

the offense charged in this case. Appellant cannot now successfully complain that 

the defense relied upon at trial was somehow undermined by its very statutory 

definition. 

The appellant received a fair trial, the judge appropriately provided 

instructions in light of the law, evidence, and inquiry from the panel, and the 

conviction of rape by using force is reliable. 

 

6 Appellant argues that because the court-martial acquitted him of the lesser offenses 

alleging the force relied upon by the government to prove rape by force, the 

conviction for rape is therefore inconsistent and indicates the panel relied on

substantial incapacity to improperly convict appellant of rape by force. If we were 

to consider the findings inconsistent, it would have no effect on the validity of 

appellant’s conviction. We do not meddle with inconsistent findings of a courtmartial on appeal. See, e.g., United States v. Lyon, 15 U.S.C.M.A. 307, 313,

35 C.M.R. 279, 285 (1965) (“An inconsistent verdict is not usually a cause for relief. 

The reason for the rule is that the court-martial may merely have given the accused 

‘a break.’”) (internal citations omitted). There are any number of possibilities for 

the panel’s findings – all within the legitimate purview of the court-martial’s power, 

authority and responsibility. The court-martial may very well have properly 

concluded that it was improper to convict appellant of both greater and lesser 

offenses based on the same exact act, for example. See United States v. Watson, 

31 M.J. 49, 53 (C.M.A. 1990) (quoting United States v. Powell, 469 U.S. 57, 65 

(1984)) (“[I]nconsistent verdicts—even verdicts that acquit on a predicate offense 

while convicting on the compound offense—should not necessarily be interpreted as 

a windfall to the Government at the defendant’s expense. It is equally possible that 

the jury, convinced of guilt, properly reached its conclusion on the compound 

offense, and then through mistake, compromise, or lenity, arrived at an inconsistent 

conclusion on the lesser offense.”).
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CONCLUSION

On consideration of the entire record, including those matters raised by 

appellant pursuant to Grostefon, the parties’ briefs and oral argument, the findings 

of guilty and the sentence are AFFIRMED.

 

Senior Judge YOB and Judge LIND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: