## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Captain PAUL A. RIOJAS United States Army, Appellant

ARMY 20170097

Headquarters, 1st Cavalry D ivision (Rear)(Provisional) Joseph A. Keeler, Military Judge Major Edward B. Martin, Ac ting Staff Judge Advocate

For Appellant: Captain Zachary A . Gray, JA; Danie l Conway, Esqu ire (on brief).

For Appellee: Lie utenant Colonel Eric K . Stafford, JA; Major Wa yne H. Williams, JA (on brief).

26 October 2018

--------------------------------- SUMMARY DISPOSITION

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FLEMING, Judge:

In this appeal, we f ind the military judge did not abuse his di scretion in accepting appellant’ s plea of guilty to o ne specification of se xual abuse of seven

children.

A military judge sitti ng as a general court-martial convicted a ppellant, in accordance with his pleas, of o ne specification of disobeying a n order from a superior commissioned officer a nd one specification of sexual a buse of a child, 1 in

violation of Article s 90 and 120b, Uniform Code of Military Ju stice, 10 U.S.C. §§ 890, 920b (2012 & S upp. III 2016) (UCMJ). The conven ing author ity approved the

1 Appellant pleaded guilty to seve n specifications of sexual abu se of a child. Prior to announcement of the sentence, the military judge merged thes e offenses into a single specification f or purposes of findi ngs and sentence.RIOJAS—ARMY 20170097

2 adjudged sentence of a dismissal, confinem ent for nine months, 2 and forfeiture of all pay and allowances.

This case is before us for rev iew pursuant to A rticle 66, UCMJ. Appellant raises two assignments of error , one of which mer its discussion but no relief. Specifically, appellant assert s the military judge abused his d iscretion in accepting appellant’s pleas to s exual abuse of a child by fa iling to addr ess a possible mistake of fact by appell ant as to the ages of the seven victims. We d isagree.

DISCUSSION

Appellant was assigned to the U.S. Army Medical Department Act ivity – Bavaria and resided in Amberg, G ermany. Appellant frequently t ook morning runs at a park near hi s apartment, usua lly finishing at approximatel y 0745 hours. This

was about the same t ime each morning that you ng girls walked by the park on their way to school. When ap pellant completed hi s runs, he would usu ally stretch in the park. On one such occa sion, appellant’s pe nis accidentally cam e out of the bottom of his admittedly “short jogging shorts.” Some girls on their way to school

witnessed this war drobe malfunctio n and giggled.

This excited the app ellant. So much so, h e intentionally expo sed himself to teenage girls on three or four more occasion s in a similar fash ion. As appellant explained during his Care 3 inquiry, “[W]hen I saw teenag e girls walk by me while I was stretching, I would intenti onally make it so my penis would be exposed outside of my shorts.” Each time appella nt knew his peni s was exposed and was seen by teenage girls.

In total, appellant pl eaded guilty to exposi ng himself multiple times to seven different girls who were all you nger than sixteen years of age. His offense – sexual abuse of a child – required that each victim was under the age of sixteen years. See Manual for Courts-Martial, United States (2016 ed.) [MCM], pt. IV, ¶¶ 45b.a.(c), (d)(2). While not re quired for appellant t o know the girls wer e under the age of sixteen, it was a defe nse if appellant reasonably believed the victims had attained the age of sixteen. MCM , ¶ 45b.a.(d)(2). On this po int, appellant claims his responses to the milita ry judge during the Care inquiry set up a ma tter inconsistent with his pleas of guilty.

2 The convening authority’s action was erroneous. Appellant ple aded guilty pursuant to a pretrial agreement wherein the convening au thority agreed to disapprove any

sentence to confinemen t in excess of six m onths. Rather than r emanding this case to the convening authority for a cor rected action we, as a matter of judicial economy, set aside that portion of the sentence to c onfinement in excess of six months.

3 United States v. Care , 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).RIOJAS—ARMY 20170097

3 We review a military judge’s dec ision to accept a guilty plea f or an abuse of

discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008) (citations omitted). An abuse of discretio n occurs if the military judge “fails to obtain from

the accused a n adequate factual basis to support the plea.” Id. (citing United States

v. Jordan , 57 M.J. 236, 238 (C.A .A.F. 2002)). We aff ord a military judg e’s decision to accept a guilty plea “significant deference.” Id. We will not reject a plea unless

the record of trial shows “‘a substantial basis’ in law and fac t for questioning the guilty plea.” United States v. Prater , 32 M.J. 433, 436 (C.A.A.F. 1991 ). That is, once a military judge has accepte d a plea as provident, “an app ellate court will not reverse that finding and reject the plea unless it finds a subs tantial conflict between the plea and the accused’s state ments or other e vidence of reco rd.” United States v.

Shaw , 64 M.J. 460, 462 (C.A .A.F. 2007) (quoting United States v. Garcia , 44 M.J. 496, 498 (C.A.A.F . 1996)).

As appellant expla ined during his Care inquiry, “I did not know the age of any of the girls to whom I expose d myself; however, I made no a ttempt to ascertain their age.” Rep eatedly, he referred to the victims as “young” or “teenage.” Later, the military judge aske d, “did you believe t hat any of the girl s had attained the age of 16,” to which appella nt responded “I on ly saw young women. I didn’t actually know their ages and I didn’t try to ascertain the ir age.” The military judge did not explain the mistake of fact defe nse or directly ask appellant i f he believed he had a defense to the allegations of sexual abuse of a child.

Standing alone, appellant’s re sponses did not c learly dispel t he possibility of

a defense to the sexua l abuse charges. “W here the possibility of a defense exists, [our superior] Court has indeed suggested that a military judge secure satisfactory disclaimers by the accused of this defense.” Prater , 32 M.J. at 436 (citations omitted). But we are not limited to appell ant’s responses and consider the “‘full context’ of the plea in quiry,” to include th e stipulation of fa ct. United States v.

Goodman , 70 M.J. 396, 399 (C.A .A.F. 2011) (quoting United States v. Smauley , 42 M.J. 449, 452 (C.A.A.F . 1995)). Viewing the record as a whole, mistake of fact as

to age was not even re motely presented as a possible defense. 4

During the Care inquiry, appellant r ead the stipulatio n of fact that was ultimately admitted as a prosecution exhibit. The appellant ad mitted under oath that everything in the stipulation of f act was true, to include the ages of the victims of his sexual abuse (variously fou rteen, thirteen, and twelve year s of age). More

4 While we ultimately find, bas ed on a review of t he entire reco rd, the military judge

did not abuse his discretion in f ailing to advise appellant of the defense of mistake of fact, the Care inquiry was not a model for other military judges to emulate. We encourage military judges to con sider advising an accused of a possible defense in situations, such as this case, where appellate litigation could result from the mere prospect of a defense.RIOJAS—ARMY 20170097

4 importantly, as to each victim o f sexual abuse, t he stipulation of fact provided “The [a]ccused did not ha ve an honest and reas onable mistake of fact as to her age, and at no time did the [a]ccused make any effort to ascertain her true age.” Put another way, the prospect of th e defense of mistake of fact did not exi st because, by the accused’s answers during the Care inquiry and the stipulatio n, he did not raise an

honest or reasonable belief that any victim was over the age of sixteen.

In the end, we do not find appellant raised a matter inconsist ent with his plea of guilty or an abuse of discretion by the military judge in ac cepting appellant’s plea.

CONCLUSION

The findings of guilty are AFFIR MED. Only so much of the sent ence extending to a dismissal, confin ement for six months, and total forfeiture of all pay

and allowances is AFFIRMED. All rights, privileg es, and proper ty, of which appellant has been depr ived by virtue of tha t portion of his se ntence set aside by this

decision are ord ered restored.

Senior Judge BURTON an d Judge HAGLER concur.

FOR THE COURT:

JOHN P. TAITT JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: