UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and LEVIN1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class ABELARDO GONZALEZ 

United States Army, Appellant 

ARMY 20170118 

Headquarters, 82d Airborne Division 

Deidra J. Fleming and Paul J. Cucuzzella, Military Judges 

Colonel Travis L. Rogers, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Pia W. Rogers, Acting Staff Judge Advocate (post-trial) 

For Appellant: Colonel Mary J. Bradley, JA; Captain Joshua B. Fix, JA; Captain 

Zachary A. Gray, JA (on brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Marc B. Sawyer, 

JA; Captain Allison L. Rowley, JA (on brief). 

24 August 2018 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

LEVIN, Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of three specifications of abusive sexual contact in violation of 

Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. III 

2016) (UCMJ). The military judge sentenced appellant to a bad-conduct discharge, 

confinement for six months, forfeiture of all pay and allowances, and reduction to 

the grade of E-1. The convening authority approved the sentence as adjudged. 

 

1

 Judge Levin decided this case while on active duty. 
GONZALEZ—ARMY 20170118 

2 

This case is before us for review under Article 66, UCMJ. Appellant raises 

one assignment of error concerning the providence of his guilty plea, which merits 

discussion but not relief.2 

BACKGROUND 

Appellant committed abusive sexual contact against three sleeping soldiers 

during a training exercise at Joint Readiness Training Center (JRTC), Fort Polk, 

Louisiana. With respect to two victims, appellant touched their penises. For the 

third victim, appellant touched him on the hip area. 

Prior to trial, appellant entered into a pretrial agreement with the convening 

authority. In this agreement, appellant agreed to plead guilty to Specifications 4, 5, 

and 6 of The Charge, in exchange for a cap on his sentence to confinement. 

At trial, the military judge advised appellant of the elements of these offenses, 

including that appellant must have acted with the “intent to gratify [his] sexual 

desires.” As part of the providence inquiry, the military judge and appellant 

engaged in a lengthy colloquy regarding his touching of Corporal (CPL) HW, one of 

the victims: 

MJ: Do you believe and admit that the elements and 

definitions taken together correctly describe what you did? 

ACC: Yes, Your Honor. 

. . . 

MJ: Why did you touch him in this area? 

ACC: I was just curious, sir. 

MJ: When you say “curious,” was it your intent when you 

did this to gratify your own sexual desires? 

ACC: No, sir – Yes, Your Honor. 

MJ: Let me ask it again. When you touched him on this 

occasion, was your intention at the time to somehow 

gratify or satisfy your own sexual desires or curiosity? 

 

2

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

431 (C.M.A. 1982), neither of which merit relief. 
GONZALEZ—ARMY 20170118 

3 

ACC: Yes, Your Honor. 

. . . 

ACC: I guess my – the curiosity was if I did – if I liked 

females or males. I didn’t know. 

MJ: So, is it fair to say that at this point in time, you were

testing your own sexual curiosities? 

ACC: Yes, Your Honor. 

MJ: And your own sexual desires? 

ACC: Yes, Your Honor. 

Later, the military judge asked appellant if he believed and admitted that he 

touched CPL HW’s penis with the intent to gratify his own sexual desires, to which 

appellant responded, “Yes, Your Honor.” 

With respect to Private (PVT) TM, a second victim, the military judge again 

advised appellant of the elements of the offense. Appellant again indicated that he 

understood the elements and that they accurately described what he did. However, 

when describing his intent, appellant said his purpose was to gratify his sexual 

curiosity, as he “didn’t know if [he] liked men or women.” The military judge and 

appellant subsequently had the following exchange: 

MJ: So, is the reason that you touched [TM] on this 

occasion the same reason why some [two] weeks later you 

touched [CPL HW]? 

ACC: Yes, Your Honor. 

MJ: Was there anything different about the two occasions 

in terms of what your intention was? 

ACC: No, Your Honor. 

MJ: So, was it your intention at the time to somehow 

satisfy your own sexual desire or curiosity? 

ACC: Yes, Your Honor. 
GONZALEZ—ARMY 20170118 

4 

While still discussing appellant’s conduct with PVT TM, the military judge 

asked if appellant believed and admitted that he touched PVT TM’s penis with the 

intent to gratify his sexual desires. Again, appellant responded, “Yes, Your Honor.” 

For the third victim, Specialist (SPC) TH, the military judge reminded 

appellant that one of the elements included an intent to gratify his sexual desires. 

Appellant admitted the elements correctly described what he did. Similar to his 

earlier statements, appellant stated that his intent was to gratify his own sexual 

desires or curiosity: 

MJ: So, your intention in touching [SPC TH] in this 

manner, was that similar to or the same as what your 

intention was moments later when you touched [PVT 

TM]? 

ACC: Yes, Your Honor. 

MJ: Was [your intent] similar to or same [sic] as what 

your intention was some [two] weeks later when you 

touched [CPL HW]? 

ACC: Yes, Your Honor. 

MJ: And that was to gratify your own sexual desires or 

curiosity? 

ACC: Yes, Your Honor. 

MJ: Was there anything different about your intent with 

respect to [SPC TH] than what your intent was with 

respect to the other two? 

ACC: No, Your Honor. 

 As he had done previously, appellant acknowledged his intent in touching 

SPC TH was to gratify his own sexual desires. 

Following appellant’s comments, and after prompting by the trial counsel, the 

military judge sought clarification as to why appellant believed his conduct was 

done with the intent to gratify his sexual desires: 

MJ: PFC Gonzalez, when you spoke of the reasons why 

you touched these three individuals – and I believe you 

said your reasons with respect to all three were the same? 
GONZALEZ—ARMY 20170118 

5 

ACC: Yes, Your Honor. 

MJ: And you spoke of your sexual curiosity? 

ACC: Yes, Your Honor. 

MJ: I think what you said was that you – and I’ll be 

paraphrasing here, but you were somehow testing your 

own curiosity about males and females. Is that right? 

ACC: Yes, Your Honor. 

MJ: Was part of this curiosity to fulfill or satisfy some 

sort of sexual desire of yours? 

. . . 

ACC: Yes, Your Honor. 

MJ: What do you mean by that? 

ACC: I mean I was curious, like, if I was in to [sic], like, 

male or female. Like, to the point where, like, do I like 

them or not. 

MJ: And do you feel, by touching these individuals, it 

would address some sort of desire that you have sexually? 

ACC: Yes, Your Honor. 

MJ: Was the reason that you touched these three 

individuals, was it sexual in nature? 

 

. . . 

ACC: I guess it goes back to when I was, like, 5, when I 

was a kid, when my uncle touched me with his penis on 

my back and my sister got raped. I guess it was a little 

curiosity to the point where I wanted to see if I liked that 

– if I liked a female sexually or a male sexually. I guess it 

was – Your Honor, I guess it was, like – it was just a – 

how do I say that? I was curious. I didn’t know what I 

liked. So, I guess that doing that, I thought I would find a 

way to like a female or male. 
GONZALEZ—ARMY 20170118 

6 

MJ: So, your curiosity in this regards was somehow in an 

effort to address your sexual desires? Is that fair to say? 

ACC: Yes, Your Honor. 

MJ: Do you admit that on each of these three occasions 

you touched these individuals to gratify your sexual 

desires? 

ACC: Yes, Your Honor. 

The military judge subsequently accepted appellant’s guilty plea to the 

specifications. 

LAW AND DISCUSSION 

Appellant alleges there is a substantial basis in law and fact to question the 

providence of his pleas of guilty to all three offenses. Specifically, appellant argues 

the military judge failed to establish an adequate factual predicate to support the 

element involving his intent to gratify his sexual desire. 

We review a military judge’s acceptance of an accused’s guilty plea for an 

abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). 

“In doing so, we apply the substantial basis test, looking at whether there is 

something in the record of trial, with regard to the factual basis or the law, that 

would raise a substantial question regarding the appellant’s guilty plea.” Id. 

In order to establish an adequate factual predicate for a guilty plea, the 

military judge must elicit “factual circumstances as revealed by the accused himself 

[that] objectively support that plea[.]” United States v. Davenport, 9 M.J. 364, 367 

(C.M.A. 1980). It is not enough to elicit legal conclusions; the military judge must 

elicit facts to support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331 

(C.A.A.F. 1996). 

The record of trial must reflect not only that the elements of each offense 

charged have been explained to the accused, but also “make clear the basis for a 

determination by the military trial judge . . . whether the acts or the omissions of the 

accused constitute the offense or offenses to which he is pleading guilty.” United 

States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). The 

fundamental requirement of a plea inquiry under Care and Rule for Courts-Martial 

(R.C.M.) 910 “involves a dialogue in which the military judge poses questions about 

the nature of the offense and the accused provides answers that describe his personal 

understanding of the criminality of his or her conduct.” United States v. Hartman, 

69 M.J. 467, 469 (C.A.A.F. 2011). 
GONZALEZ—ARMY 20170118 

7 

In this case, the military judge explained on numerous occasions that one of 

the elements involved an intent to satisfy appellant’s sexual desires. For each 

specification, the military judge confirmed that appellant believed and admitted the 

elements accurately described what he did and that he specifically acted with the 

intent to satisfy his own sexual desires. Although appellant occasionally stated that 

his conduct was intended to gratify his own “sexual desires or curiosity,” appellant 

ultimately clarified that he was curious about his own sexual preference, and that his 

actions were intended to gratify his sexual desires.3 Appellant’s motives were not 

inconsistent with his intentions—the former simply put the latter in context. 

 Based on the providence inquiry, we are convinced the military judge and 

appellant established a personal understanding of how appellant believed his actions 

met the elements of the offense. We therefore conclude there is no substantial basis 

in law or fact to question the providence of appellant’s plea. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and the 

sentence are AFFIRMED. 

Senior Judge MULLIGAN and Judge FEBBO concur. 

FOR THE COURT: 

 JOHN P. TAITT 

 

3

 In accordance with his pretrial agreement, appellant entered into a stipulation of 

fact, which ordinarily would be helpful to resolving the issue presented. See United 

States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011). Such is not the case here, where 

the stipulation merely reflects that appellant “touched their penises over their 

sleeping bags out of sexual curiosity, and without their consent.” 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: