## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and LEVIN 1 Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class ABELARDO GONZALEZ United States Army, Appellant

ARMY 20170118

Headquarters, 82d A irborne Division Deidra J. Fleming a nd Paul J. Cucuzze lla, Military Judges Colonel Travis L. Rogers, Staff Judge Advocate (pretrial)

Lieutenant Colonel P ia W. Rogers, Acting St aff Judge Advocate ( post-trial)

For Appellant: Colonel Mary J. B radley, JA; Capta in 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. R owley, JA (on brief).

24 August 2018

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

LEVIN, Judge:

A military judge sitti ng as a general court-martial convicted appellant, pursuant to his pleas, of three specifications of abusive sexua l contact in v iolation of Article 120, Uniform Code of Milit ary Justice, 1 0 U.S.C. § 920 (2012 & Supp. III 2016) (UCMJ). The military judge sentenced appe llant to a bad- conduct discharge, confinement for six months, forf eiture of all pay and allowance s, and reduction to the grade of E-1. The c onvening authority a pproved th e sentenc e as adjudged.

1 Judge Levin decide d this case while on active duty.GONZALEZ—ARMY 20170118

2 This case is before us for revie w under Article 66, UCMJ. Appe llant raises one assignment of error concernin g the providence of his guilty plea, which merits

discussion but not relief. 2

BACKGROUND

Appellant committed abusive sexua l contact agains t three sleepi ng soldiers during a training exercise at Joint Readin ess Training Center ( JRTC), Fort Polk, Louisiana. With respect to two victims, appellant touched thei r penises. For the third victim, appellant touc hed him on the hip area.

Prior to trial, appellant entered into a pretrial agreement wit h the convening authority. In this agreement, appellant agreed to plead guilty to Specifications 4, 5,

and 6 of The Cha rge, in exchange for a c ap on his sentence to c onfinement.

At trial, the military judge advised appellant of the elements of these offenses, including that appella nt must have acted w ith the “intent to gr atify [his] sexual desires.” As part o f the providence inqu iry, the military judg e and appellant engaged in a lengthy colloquy regarding his touching of Corpora l (CPL) HW, one of

the victims:

MJ: Do you believe and admi t that the elements and definitions taken together co rrectly describe what you did?

ACC: Yes, Your Honor.

. . .

MJ: Why did yo u touch him in this area?

ACC: I was just curious, sir.

MJ: When you say “cu rious,” was it you r intent when you did this to gratify your own sexual desires?

ACC: No, sir – Yes, Your Honor.

MJ: Let me ask it again. W hen you touched him on this occasion, was your intentio n at the time to somehow gratify or satisfy your own sexual desires or curiosity?

2 Appellant also raises tw o matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), neither o f 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 poin t in time, you were testing your own se xual 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 ad mitted that he touched CPL HW’s penis with the intent to gratify his own sexua l desires, to which appellant responded, “Yes, Your Honor.”

With respect to Private (PVT) T M, a second victim, the military judge again advised appellant of the elements of the offense. Appellant ag ain indicated that he

understood the elements and that they accur ately described what he did. However, when describing his intent, app ellant said his pu rpose was to g ratify his sexual curiosity, as he “didn’t know i f [he] liked men or women.” The military judge and appellant subsequently had the following exchange:

MJ: So, is the reason tha t you touched [TM] on this occasion the same reason why s ome [two] weeks later you touched [CPL HW]?

ACC: Yes, Your Honor.

MJ: Was there anything differe nt about the two occasions in terms of what your intention was?

ACC: No, Your Honor.

MJ: So, was it you r 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 mil itary judge asked if appellant believed and a dmitted that he touched PVT TM ’s penis with the intent to gratify his sexual desires. Again, appellant respond ed, “Yes, Your Honor.”

For the third victim , Specialist (SPC) TH , the military judge r eminded appellant that one of the elements included an intent to gratif y his sexual desires. Appellant admitted the elements correctly de scribed what he did . Similar to his earlier statements, appellant stated that his intent was to gra tify his own sexual desires or curiosity:

MJ: So, your intention in t ouching [SPC TH] in this manner, was that si milar to or the sa me as what your

intention was moments la ter when you touched [PVT TM]?

ACC: Yes, Your Honor.

MJ: Was [your intent] simila r to or same [s ic] as what your intention wa s some [two] weeks later when you touched [CPL HW]?

ACC: Yes, Your Honor.

MJ: And that was t o gratify your own sexual desires or curiosity?

ACC: Yes, Your Honor.

MJ: Was there anything differe nt about your intent with respect to [SPC TH] than w hat your intent was with respect to the other two?

ACC: No, Your Honor.

As he had done previously, appellant acknowledged his intent i n touching SPC TH was to gratify h is own sexual desires.

Following appellant’s comments , and after prompt ing by the tria l counsel, the military judge sought clarification as to w hy appellant believe d his conduct was done with the intent to gratify his sexual desires:

MJ: PFC Gonzalez, when you spoke of th e reasons why you touched these three indivi duals – and I believe you said your reasons wit h respect to all three were the same?GONZALEZ—ARMY 20170118

5 ACC: Yes, Your Honor.

MJ: And you spoke of you r sexual curiosity?

ACC: Yes, Your Honor.

MJ: I think what you said w as that you – and I’ll be paraphrasing here , but you were some how 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 m ean by that?

ACC: I mean I was curious, lik e, 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 th ese individuals, it

would address some sort of desi re that you ha ve 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 wa s, like, 5, when I was a kid, when my u ncle 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 o r 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 cur ious. I didn’ t know what I liked. So, I guess t hat doing that, I thou ght I would find a way to like a female or male.GONZALEZ—ARMY 20170118

6 MJ: So, your curiosi ty in this regards w as somehow in an effort to address your sexual desires? Is that fair to say?

ACC: Yes, Your Honor.

MJ: Do you admit th at on each of these three occasions you touched these ind ividuals to grat ify your sexual

desires?

ACC: Yes, Your Honor.

The military judge subsequently accepted appellant’s guilty ple a to the specifications.

LAW AND DISCUSSION

Appellant alleges ther e is a substantial basis in law and fact to question the providence of his pl eas of guilty to all three offenses. Speci fically, appellant argues the military judge failed to esta blish an adequate factual pred icate to support the element involving his intent to gratify his sexual desire.

We review a military judge’s ac ceptance 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 t he substantial basis test, looking at w hether there is something in the recor d of trial, with reg ard to the factual ba sis or the law, that

would raise a substant ial question regardin g the appellant’s gu ilty plea.” Id

.

In order to establish an adequate factual predicate for a guilt y plea, the military judge must elicit “fact ual circumstances as revealed b y the accused himself [that] objectively support that plea[.]” United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980). It is not enoug h to elicit legal conclusions; t he military judge must elicit facts to support the plea o f 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 t he accused, but also “make clea r the basis for a determination by the military t rial judge . . . whether the act s or the omissions of the accused constitute the offense or offenses to which he is plead ing guilty.” United

States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 25 3 (1969). The fundamental requirement of a plea inquiry under Care and Rule for Courts-Martial (R.C.M.) 910 “involves a dialogu e in which the m ilitary judge p oses questions about

the nature of the offe nse and the accused provides answers that describe his personal understanding of the criminalit y of his or he r conduct.” United States v. Hartman

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

7 In this case, the military jud ge explained on numerous occasion s that one of

the elements involved an intent to satisfy appellant’s sexual d esires. For each specification, the military judge confirmed that appellant beli eved and admitted the elements accurately described wha t he did and that he specifica lly acted with the intent to satisfy his own sexua l desires. Although appellant o ccasionally stated that

his conduct was inte nded to gratify his ow n “sexual desires or curiosity,” appellant ultimately clarified that he was curious about his own sexual p reference, and that his

actions were inten ded to gratify his sexual desires. 3 Appellant’s mo tives were not inconsistent with his intentions—the former simply put the latt er in context.

Based on the providence inquir y, we are convince d the military judge and appellant established a persona l understanding of how appellant believed his actions

met the elements of the offense. We therefore conclude there i s no substantial basis in law or fact to ques tion the providence of appellant’s plea.

CONCLUSION

Upon consideration of the entire record, the find ings of guilty and the

sentence are AFFIRMED.

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

J OHN P. TAITT

3 In accordance with his pretrial agreement, appellant entered i nto 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 i s not the case here, where the stipulation merely reflects that appellant “touched their p enises over their sleeping bags out of s exual curiosit y, and without their consen t.” JOHN P. TAITT Acting Clerk of Court FOR THE COURT: