UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600331

_________________________

UNITED STATES OF AMERICA

Appellee

v.

GERARDO R. GOMEZ

Lance Corporal (E-3), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Major M.D. Sameit,USMC.

Convening Authority: Commanding General, 1st Marine Division

(REIN), Camp Pendleton, CA.

Staff Judge Advocate’s Recommendation: Major M.J. Stewart, 

USMC.

For Appellant: Lieutenant Commander William L. Geraty, JAGC, 

USN.

For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC, 

USN; Lieutenant Commander Justin C. Henderson, JAGC, USN.

_________________________

Decided 4 April 2018

_________________________

Before HUTCHISON, PRICE, and FULTON, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

_________________________

PRICE, Judge:

Officer and enlisted members sitting as a general court-martial convicted 

the appellant, contrary to his pleas, of one specification of 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, 
United States v. Gomez, No. 201600331

2

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920.1 The 

members sentenced the appellant to five years’ confinement, reduction to pay 

grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. 

The convening authority (CA) approved the sentence as adjudged and, except 

for the dishonorable discharge, ordered it executed.

The appellant raises seven assignments of error (AOEs): (1) the 

government violated his due process right to notice when it charged him with 

sexual assault under a bodily harm theory, but convicted him under an 

incapable of consenting due to impairment by alcohol theory; (2) the term 

incompetent as applied at trial was unconstitutionally vague; (3) the military 

judge abused his discretion by admitting evidence of the alleged victim’s

alcohol consumption; (4) the military judge abused his discretion by 

instructing the members on the alleged victim’s competence and capacity to 

consent, after ruling that competence and capacity were not at issue, denying

the appellant a fair trial; (5) the military judge erred by declining to provide a 

defense-requested instruction addressing the alleged victim’s capacity to 

consent and the relevance of her intoxication; (6) the military judge 

improperly instructed the members on the alleged victim’s competence and 

capacity to consent; and (7) the evidence is legally and factually insufficient

to prove any violation of Article 120, UCMJ. 

Having carefully considered the record of trial, the parties’ submissions, 

and oral argument, we conclude the findings and sentence are correct in law 

and fact and find no error materially prejudicial to the appellant’s substantial 

rights.2 Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

RMR, a civilian, was staying with a friend, Mrs. U, and her husband LCpl

U, near Camp Pendleton, California. When RMR found herself locked out of 

the Us’ apartment she contacted the appellant, whom she knew through 

social media but had never met in person. The appellant picked up RMR and 

drove her onboard Camp Pendleton where they spent several hours together, 

first talking in his barracks room and later socializing with a group of 

Marines. The appellant asked RMR to spend the night with him, but she 

declined.

 

1 Following announcement of the findings, the military judge ruled specifications 

2-4 of Charge II constituted an unreasonable multiplication of charges and merged 

those specifications for findings and sentencing. Record at 548-50.

2 We heard oral argument in this case on 31 October 2017 at the Georgetown 

University Law Center as part of our Outreach program.
United States v. Gomez, No. 201600331

3

At approximately 1800, the appellant drove RMR to the Us’ apartment

and left to meet some friends. Over the next several hours, RMR and Mrs. U 

consumed half a bottle of vodka, and RMR also drank one beer. Between 2016 

and 2335 the appellant and RMR exchanged over 100 text messages. During 

the text conversation RMR agreed to spend the night with the appellant in 

his barracks room and said she was “[t]rying to get somewhat drunk but 

[kept] losing [her] drunk vibe.”3 After consuming the vodka and beer, RMR 

exhibited signs of alcohol impairment and vomited in the Us’ bathroom.

While the appellant was enroute to the Us’ apartment, Mrs. U sent a text 

to the appellant telling him that RMR was drunk and impatiently awaiting 

his arrival. LCpl and Mrs. U told RMR it was a bad idea for her to leave the

apartment, but RMR insisted that she was fine and that she wanted to go 

with the appellant. LCpl U testified that RMR decided on her own to leave 

with the appellant. When the appellant arrived at the Us’ apartment shortly

after midnight, Mrs. U helped RMR walk to his car, and LCpl U informed the 

appellant that RMR was pretty drunk. 

The appellant drove RMR to his barracks, stopping several times along 

the way so she could vomit or spit. Due to her physical state, the appellant 

carried RMR from his car to his barracks room. RMR felt sick and went into 

the appellant’s bathroom and laid on the floor and toilet. The appellant told 

RMR, “we’re dudes—we pee everywhere[,]” and she responded that she did 

not care because she needed to throw up.4 RMR then vomited in the 

appellant’s toilet. The appellant told RMR she could not lie in his bed 

smelling like “throw-up,” and encouraged her to take a shower.

5

RMR testified that she was an inexperienced drinker and had limited 

recall of events after drinking at the Us’ apartment. RMR’s inability to 

remember the evening’s events was consistent with alcohol-induced blackout 

as described by expert witnesses. She did not recall the content of many of 

the texts she exchanged with the appellant including her agreement to stay 

in his room or coordinating her pick-up from the Us’ apartment because of 

her self-described intoxication. She also did not recall the circumstances 

surrounding her departure from the Us’ apartment or how she got to the 

appellant’s barracks room. She remembered vomiting into the appellant’s 

toilet and recalled him saying “that [her] friend told him to shower me,” 

 

3 Prosecution Exhibit (PE) 4 at 9.

4 PE 12.

5 Id.
United States v. Gomez, No. 201600331

4

which caused her to think something “wasn’t right” because she had 

showered a few hours earlier.

6

RMR also remembered being in the appellant’s shower, seeing her feet 

while “bent over,” with the appellant behind her “having sex with [her].”7 She 

testified she experienced difficulty moving and speaking but nudged or 

elbowed the appellant several times in an effort to get him to stop, and then 

told him “no.”8 She also recalled being “laid down on [her] side,” and feeling 

the appellant’s fingers and then his penis inside her vagina.9 She testified 

that she “tried to get him to stop . . . with [her] arm again, tried to nudge, and 

then . . . after making a couple noises, like ‘Uh-uh’ . . . implying no, [she] 

finally said, ‘No.’”10 She did not recall if he stopped after she said no but 

assumed he did.

While driving RMR back to the Us’ apartment the next morning, the 

appellant said he wished he had “made better decisions that night.”

11 RMR 

told Mrs. U that she had been sexually assaulted and reported the alleged 

offenses to the Naval Criminal Investigative Service (NCIS). 

In cooperation with NCIS special agents, RMR engaged in a text-message 

conversation with the appellant. The appellant expressed regret throughout 

the conversation, texting, “I’m so sorry of [sic] what happened that night,” 

and “I’m sorry for having sex with you.”12 Later, in a phone conversation 

recorded by NCIS, the appellant again expressed regret to RMR, described 

how intoxicated she was, and admitted he had sex with her in the shower and 

on the bed. He also informed RMR he had performed oral sex on her, wore a 

condom only during sexual intercourse in the shower, and that he ejaculated 

while not wearing a condom. RMR had not recalled or reported the oral sex

and did not know if the appellant had worn a condom or ejaculated. 

The appellant was arraigned on eight sexual offenses, which essentially 

alleged the same four acts of sexual misconduct under two different theories 

of liability—incapability to consent due to impairment by alcohol and bodily 

harm. He was charged with three specifications of sexual assault in violation

 

6 Record at 194.

7 Id.

8 Id. at 195-97.

9 Id. at 198.

10 Id. at 199-200.

11 Id. at 203.

12 PE 3.
United States v. Gomez, No. 201600331

5

of Article 120(b)(3)(A) (penetration of RMR’s vulva on three separate 

occasions when she was incapable of consenting due to impairment by 

alcohol), three specifications of sexual assault in violation of Article 

120(b)(1)(B), UCMJ (penetration of RMR’s vulva on three separate occasions

by causing bodily harm), and two specifications of abusive sexual contact in 

violation of Article 120(d) (by placing his mouth on her vulva when she was 

incapable of consenting due to impairment by alcohol and by placing his 

mouth on her vulva, by causing bodily harm).13

Before the appellant entered pleas, the government withdrew and 

dismissed the four incapacity specifications. At an ensuing Article 39(a), 

UCMJ, hearing, the military judge questioned the trial counsel (TC) about 

the relevance of evidence of RMR’s alcohol consumption. The TC responded 

that RMR’s “level of intoxication is relevant to the matter of consent; not her 

capacity to consent, but whether or not she, in fact, did consent” to the three 

incidences of penetration.

14 With respect to the aggravated sexual contact 

offense, RMR had no independent recollection of the appellant placing his 

mouth on her vulva. Thus the TC asserted that there was “potential to argue 

that [RMR] did not have capacity [to consent] and she was not competent for 

that sexual contact.”

15

The trial defense counsel (TDC) argued that RMR’s actions demonstrated

that she had the capacity to consent since she expressed a lack of consent 

through physical actions and by verbally saying “No.”16 He then expressed 

concern that evidence of RMR’s lack of memory “opens the door to capacity 

now becoming an argument” and that such an argument might mislead the 

members or cause them to conclude that RMR did not “have the capacity to 

consent.”17 The TDC then argued that the government should be precluded 

from arguing competence and capacity. 

Based on the TDC’s concerns, the military judge substantially limited the 

TC’s ability to argue that RMR did not have the capacity to consent. The 

military judge acknowledged that RMR’s alcohol use was relevant to the 

issue of consent. But he reasoned that since the government would seek to 

prove that the appellant committed bodily harm in order to sexually assault 

RMR, and because the government had dismissed the specifications alleging 

 

13 Charge Sheet.

14 Record at 36.

15 Id. at 36-37.

16 Id. at 37-38.

17 Id. at 38.
United States v. Gomez, No. 201600331

6

that RMR was incapable of consenting due to alcohol, he “d[id] not find that 

competence and capacity [wa]s in issue” based upon the parties’ proffers and 

the exhibits he had examined. 

The military judge directed the government to “limit [its] argument to 

whether or not this was by bodily harm” and precluded argument “that 

[RMR] was not competent in this case.”

18 In response to a question from the 

TC, the military judge clarified that they were not to argue RMR lacked 

capacity but could argue all the surrounding circumstances. 

The defense theory at trial was that RMR was competent to engage in 

sexual activity and that she either consented to the alleged sexual activity or, 

as the result of a reasonable mistake of fact, the appellant believed she 

consented to the sexual activity. 

Additional facts necessary to resolution of the AOEs are included below.

II. DISCUSSION

A. Due Process and notice

The appellant argues that his Due Process rights were violated when he 

was “convict[ed] of an offense that was different from the charged offense.”

19

 

1. Law

The Due Process Clause of the Fifth Amendment “requires ‘fair notice’

that an act is forbidden and subject to criminal sanction” before a person can 

be prosecuted for committing that act. United States v. Vaughan, 58 M.J. 29, 

31 (C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 

1998)). “The due process principle of fair notice mandates that an accused has 

a right to know what offense and under what legal theory he will be 

convicted.” United States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013) (citing 

United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (internal quotation 

marks and citation omitted)). ‘“[T]he Due Process Clause of the Fifth 

Amendment also does not permit convicting an accused of an offense with 

which he has not been charged.”’ Id. (quoting United States v. Girouard, 70 

M.J. 5, 10 (C.A.A.F. 2011)) (alteration in original).

2. Analysis

The appellant argues he was charged with sexual assault and abusive 

sexual contact alleging bodily harm but prosecuted and convicted of those 

offenses under a different legal theory––that the putative victim was 

 

18 Id. at 38-39.

19 Appellant’s Brief of 31 Mar 2017 at 17.
United States v. Gomez, No. 201600331

7

incapable of consenting due to impairment by alcohol. He asserts this 

violated his due process right to know what offense and legal theory of 

liability he had to defend against. We disagree and conclude the appellant 

was convicted of the offenses of which he was charged.20 

First, the appellant was informed of the sexual offenses charged and the 

applicable legal theory—bodily harm—and then convicted of those offenses.

Tunstall, 72 M.J. at 192.

He was charged with three specifications of violating Article 120(b)(1)(B), 

UCMJ—sexual assault by causing bodily harm—and one specification of 

violating Article 120(d), UCMJ—abusive sexual contact by causing bodily 

harm. 

The sexual assault specifications alleged he penetrated RMR’s vulva on 

two occasions with his penis and once with his finger “without her consent, by 

causing bodily harm to her, to wit: an offensive touching however slight.”21

The abusive sexual contact specification alleged he “plac[ed] his mouth on 

[RMR’s] vulva, without her consent, by causing bodily harm to her, to wit: an 

offensive touching however slight.”22

Bodily harm is a defined term in the relevant punitive article, and it put

the appellant on notice that the government would have to prove lack of 

consent;

23 that consent “means a freely given agreement to the conduct at 

issue by a competent person[;]”

24 and that “[a]ll the surrounding 

 

20 See generally United States v. Motsenbocker, No. 201600285, 2017 CCA LEXIS 

539 at *19-23 (N-M.Ct.Crim.App. 10 Aug 2017) (we found no merit in the appellant's 

argument that he was not on notice of what “he was required to defend against" 

where the government charged sexual assault by causing bodily harm and abusive 

sexual contact by causing bodily harm in violation of Articles 120(b)(1)(B) and 120(d), 

UCMJ), rev. denied, __ M.J. __, 2018 CAAF LEXIS 539 (C.A.A.F. Feb. 13, 2018).

21 Charge Sheet. Article 120(b)(1)(B), UCMJ, states “[a]ny person . . .who . . . (1) 

commits a sexual act upon another person by . . . (B) causing bodily harm to that 

other person . . . is guilty of sexual assault[.]”

22 Charge Sheet. Article 120(d), UCMJ, states “[a]ny person . . .who commits or 

causes sexual contact upon another person, if to do so would violate subsection (b)

(sexual assault) had the sexual contact been a sexual act is guilty of abusive sexual 

contact[.]”

23 Bodily harm means “any offensive touching of another, however slight, 

including any nonconsensual sexual act or nonconsensual sexual contact.” Art. 

120(g)(3), UCMJ. 

24 Art. 120(g)(8)(A), UCMJ. Consent means a freely given agreement to the 

conduct at issue 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 
United States v. Gomez, No. 201600331

8

circumstances are to be considered in determining whether a person gave 

consent[.]”25 The specifications, therefore, provided the appellant notice that 

RMR’s consumption of alcohol and level of intoxication were potentially 

relevant as “surrounding circumstances” in the court’s determination of

whether RMR consented to the sexual conduct in issue. In fact, prior to 

commencement of trial on the merits, the military judge explicitly (and 

correctly) found that “evidence that [RMR] was drinking is part of those 

surrounding circumstances and should be allowed in on the issue of 

consent.”

26

The statutory definition of consent as “a freely given agreement to the 

conduct at issue by a competent person” provides notice that when the “bodily 

harm” alleged is the sexual act or contact, as in this case, the victim’s 

“competence” is at issue.27 The plain language of the statute provided the 

appellant fair notice of the offense and legal theory under which he was

convicted. See United States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017) 

(“[C]ourts must presume that a legislature says in a statute what it means 

and means in a statute what it says there. When the words of a statute are 

unambiguous, then, this first cannon [of statutory interpretation] is also the 

last: judicial inquiry is complete.”) (citation and internal quotation marks 

omitted).

Second, the appellant’s argument that he was prosecuted under a legal 

theory that RMR was incapable of consenting due to impairment by alcohol is 

unsupported by the record. 

The military judge precluded the TC from arguing incapacity, and the TC 

complied throughout the trial. The TC mentioned a “competent person” only 

once in his closing argument when he paraphrased the military judge’s 

instruction and then immediately detailed the factual bases for determining 

that RMR did not consent to the sexual conduct. Rather than focus on RMR’s 

ability—or lack of ability—to consent, he highlighted RMR’s physical and 

verbal resistance: “We have physical resistance. We have a verbal, No, in this 

case. This is important.”

28 Consistent with the military judge’s limitation, the 

 

submission resulting from the use of force, threat of force, or placing another person 

in fear does not constitute consent. A current or previous dating or social or sexual 

relationship by itself or the manner of dress of the person involved with the accused 

in the conduct at issue shall not constitute consent. 

25 Art. 120(g)(8)(C), UCMJ (emphasis added).

26 Record at 38. 

27 Art. 120(g)(8)(A), UCMJ.

28 Record at 511. 
United States v. Gomez, No. 201600331

9

TC also discussed the circumstances surrounding RMR’s refusal to consent. 

RMR was intoxicated, sick, and had difficulty moving and speaking. But he 

did not argue that RMR was incapable of consenting due to alcohol 

intoxication. He closed his argument with “There was never that agreement. 

She told him, No.”29

The only explicit reference to RMR’s capacity, in argument, came from the 

TDC. In his opening the TDC stated: “And before I sit down, I want to 

emphasize this is not about capacity. As a matter of law and fact, the 

complaining witness was capable of consenting. [The appellant] had a 

reasonable mistake based on all of the evidence that the complaining witness 

consented to sex.”

30

In closing, the TDC argued: 

Make no mistake members, [RMR is] not too drunk. That is 

not [an] issue before you. It’s not – [an] issue. . . . it is not an 

element of the charges. . . . Don’t be distracted by this red 

herring for one minute to think that the complaining witness 

lacked the capacity to participate in a sexual encounter that 

took place that night.31

The appellant contends the limited evidence almost certainly means his 

abusive sexual contact conviction was based upon an incapacity theory and 

that there is a “substantial possibility” he was also convicted of the three 

sexual assaults under this same incapacity theory.

32 We disagree.

The limited evidence of which the appellant speaks is his admission to

performing oral sex on RMR. His spontaneous, recorded admission was both 

credible and direct evidence this sexual contact occurred. In response to 

RMR’s questions regarding what happened that night, the appellant 

admitted he did some “pretty crazy things like [placing his mouth on her

vulva].”33 After RMR expressed shock and disgust the appellant commented 

“you weren’t the one doing it.”

34 Significantly, the appellant did not claim or 

even imply RMR consented to the oral sex. Having listened to the recording of 

this exchange ourselves, we believe it likely that this evidence resonated with 

 

29 Id. at 512.

30 Id. at 175-76.

31 Id. at 516.

32 Appellant’s Brief at 18-19.

33 PE 12.

34 Id. 
United States v. Gomez, No. 201600331

10

the members, particularly in light of the appellant’s tone and self-absorbed

focus on his thoughts, physical and sexual actions driven by his sexual 

desires, and the absence of any mention of RMR’s consent or active 

participation in the sexual conduct. The effect of this evidence was 

undoubtedly amplified by the appellant’s later remorse.

We likewise find the appellant’s argument that the abusive sexual contact 

conviction raised a substantial possibility that he was also convicted of the 

three sexual assaults under this same incapacity theory to be contrary to the 

weight of the evidence. 

Third, we are unpersuaded by the appellant’s assertion that “when 

viewed together with the other enumerated theories of liability” within

Article 120, UCMJ, “the bodily harm theory of liability is more simply 

understood as applying to situations where a lack of consent can be shown by 

words, conduct, or circumstances not amounting to incompetence.”35 He 

argues the bodily harm theory of criminal liability “could be construed to 

encompass all theories of sexual assault since all types of sexual assault 

involve a lack of consent, i.e., a ‘bodily harm’” and argued his more narrowed 

interpretation “produces the greatest harmony and . . . the least 

inconsistency.”

36 The appellant’s premise is flawed. “Lack of consent” is not 

an element in all sexual assaults under Article 120(b), UCMJ.

37

Fourth, “the manner in which the case was contested diminishes any 

argument that Appellant was not on notice as to what he had to defend 

against.” United States v. Oliver, 76 M.J. 271, 275 (C.A.A.F. 2017). The

appellant’s trial strategy focused on RMR’s pre-sexual encounter behavior, 

memory gaps and discrepancies attributable to alcohol intoxication, the 

 

35 Appellant’s Brief at 22.

36 Id.

37 See United States v. Riggins, 75 M.J. 78, 84 (C.A.A.F. 2016) (“[l]ack of verbal 

or physical resistance or submission resulting from . . . placing another person in fear 

[necessary to prove violation of Article 120(b)(1)(A)] does not constitute consent. . . . 

the fact that the Government was required to prove a set of facts that resulted in [the 

victim’s] legal inability to consent was not the equivalent of the Government bearing 

the affirmative responsibility to prove [the victim] did not, in fact, consent“) 

(alteration in original) (citation, internal quotation marks, and footnote omitted). See 

also Military Judges' Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3-45-14 at 577, 

Note 9 (10 Sep 2014) (“Evidence of consent. Generally, the elements of an Article 

120(b) offense require the accused to have committed sexual conduct “by” a certain 

method . . . . Accordingly, evidence that the alleged victim consented to the sexual 

conduct may be relevant to negate an element, even though lack of consent may not 

be a separate element.”).
United States v. Gomez, No. 201600331

11

potential for her unintentional memory creation, and, alternatively, the 

appellant’s alleged mistake of fact as to consent. Like the appellant in Oliver, 

the appellant cannot argue he was not on notice that the victim’s competence 

was at issue in the case. Id. (“Whether abusive sexual contact or wrongful 

sexual contact, Appellant knew which part of the body he was alleged to have 

wrongfully touched [as] his theory throughout the court-martial was 

[consent]”); see also Tunstall, 72 M.J. at 197 (no prejudice where accused 

actually defended against both theories in the terminal element of Article 

134, UCMJ).

The TDC was aware of the distinction among lack of consent, competence,

and capacity. That he convinced the military judge to preclude the 

government from arguing capacity and competency with respect to the 

abusive sexual contact offense—an offense RMR could not even recall—

further erodes his claim that he lacked notice. The TDC disclosed his 

awareness of these key distinctions in this colloquy while discussing 

instructions:

MJ: So you knew the whole time that I was going to be 

reading the law and the definition of consent, that only a 

competent person could give consent. 

DC: We would agree, Your Honor. I don't know how that 

changes our detrimental reliance on the government’s position 

at the beginning of the case though.38

The TDC was aware that the government was required to prove lack of 

consent beyond a reasonable doubt and that “all the surrounding 

circumstances [we]re to be considered in determining whether [RMR] gave 

consent[.]” Art. 120(g)(8)(C), UCMJ. He was also aware that RMR’s alcohol 

consumption was a key surrounding circumstance and recognized that her 

competence was implicated by the relevant statutory definitions. 

We are satisfied that the appellant received the requisite due-process 

notice of the elements he was required to defend against at trial. The 

specifications alleged nonconsensual sexual acts—insertion of his penis or 

fingers into RMR’s vulva—and nonconsensual sexual contact—placing his 

mouth on RMR’s vulva. The appellant received “fair notice” and knew both 

the offense and under what legal theory he was tried and convicted. Tunstall, 

72 M.J. at 192.

 

38 Record at 413.
United States v. Gomez, No. 201600331

12

B. Instructions

The appellant asserts three separate instructional errors by the military 

judge. First, the military judge erred by declining to provide a defenserequested instruction addressing RMR’s capacity to consent and the 

relevance of her intoxication. Second, the military judge abused his discretion 

by instructing the members on RMR’s competence and capacity to consent, 

after ruling that competence and capacity were not an issue, denying the 

appellant a fair trial. Third, the military judge improperly instructed the 

members on RMR’s competence and capacity to consent. We disagree. 

1. Defense-requested instruction

The appellant argues that the novel instruction his counsel requested at 

trial was correct and necessary, and the military judge erred by refusing to 

give it.

a. Law

“While counsel may request specific instructions . . . the [military] judge 

has substantial discretionary power in deciding on the instructions to give.”

United States v. Carruthers, 64 M.J. 340, 345 (C.A.A.F. 2007) (quoting United 

States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (additional 

citations omitted)). “[A] military judge’s denial of a requested instruction is 

reviewed for abuse of discretion.” Id. at 345-46 (citations omitted). ‘“We apply 

a three-pronged test to determine whether the failure to give a requested 

instruction is error: (1) [the requested instruction] is correct; (2) it is not 

substantially covered in the main [instruction]; and (3) it is on such a vital 

point in the case that the failure to give it deprived [the accused] of a defense 

or seriously impaired its effective presentation.”’ Id. at 346 (quoting United 

States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003) (additional citation and internal 

quotation marks omitted) (alterations in original)). “All three prongs must be 

satisfied for there to be error.” United States v. Bailey, 77 M.J. 11, 14 

(C.A.A.F. 2017) (citation omitted).

b. Analysis

The TDC requested the military judge instruct the members that:

[T]he question of [RMR’s] capacity to consent is not before 

you. Put another way the government concedes that [RMR] had 

the capacity to consent despite her possible intoxication.

Persons who have consumed an intoxicant, such as alcohol, 

often exercise free will and make conscious decisions for which 

they are legally responsible. This is true even if the person does 

not later recall making the decision or if they later regret the 

decision. . . .
United States v. Gomez, No. 201600331

13

Evidence of intoxication in this case has been admitted 

merely on the question of whether the complainant consented, 

or the accused had a reasonable belief that she consented, and 

for its impact upon her memory. . . .

39

The requested instruction is not a correct statement of law or fact and 

thus fails the first prong of the Carruthers test. Specifically, the language 

that “[RMR’s] capacity to consent is not before you . . . [and] . . . the 

government concedes that [RMR] had the capacity to consent despite her 

possible intoxication” does not comport with the relevant statutory language

or the facts of this case. Our conclusion is grounded in the definition of 

“bodily harm,” which requires proof of lack of consent, and the definition of 

“consent,” which “means a freely given agreement to the conduct at issue by a 

competent person.” These two statutory definitions implicate the putative 

victim’s “competence” in the sexual assault and abusive sexual contact 

specifications alleged here.40 The appellant’s assertion that the government 

conceded RMR’s capacity to consent is also inaccurate. Before voir dire, the 

TC asserted his belief that capacity was relevant to the aggravated sexual 

contact offense, “due to [RMR’s] lack of memory, there is the potential to 

argue that she did not have capacity and she was not competent for that 

sexual contact.”41 Indeed, the military judge cited the absence of 

governmental concession as a reason for not providing the defense-requested 

instruction—“given that the government is not conceding on the issue of 

competence within the definition of consent, I am not going to give your 

instruction.”

42

We conclude the remainder of the defense-requested instruction was 

substantially covered in the military judge’s instructions, and that his 

declination to give any portion of the proposed instruction did not deprive or 

seriously impair any defense. Carruthers, 64 M.J. at 346. The appellant has 

therefore failed to satisfy any of the three prongs of the Carruthers test.

Bailey, 77 M.J. at 14.

Accordingly, we conclude the military judge was well within his discretion 

when he declined to give the defense requested instruction.

 

39 Appellate Exhibit (AE) XX.

40 Charge sheet.

41 Record at 37. 

42 Id. at 418. 
United States v. Gomez, No. 201600331

14

2. Competence and capacity-to-consent instructions

The appellant argues the military judge abused his discretion by 

instructing the members on RMR’s competence and capacity to consent, after 

ruling that competence and capacity were not at issue, and that the 

instructions provided by the military judge on capacity and consent were 

inaccurate and incomplete. We disagree.

a. Law

“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) 

(citations and internal quotation marks omitted). “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) (citation omitted). In this 

regard, the military judge bears the primary responsibility for ensuring the 

members are properly instructed on the elements of the offenses raised by the 

evidence, “as well as potential defenses and other questions of law.” Id. 

(citations and internal quotation marks omitted). 

Where there is no objection to an instruction at trial, we review for plain 

error. United States v. Robinson, __ M.J. __, 2018 CAAF LEXIS 184 at *12-

13, (C.A.A.F. Mar. 26, 2018). “[The appellant] bears the burden of 

establishing: (1) there is error; (2) the error is clear or obvious; and (3) the 

error materially prejudiced a substantial right.” Id. at *13 (citing United 

States v. Davis, 76 M.J. 224, 230 (C.A.A.F. 2017). “To establish plain error, 

‘all three prongs must be satisfied.”’ Id. (quoting United States v. Gomez, 76 

M.J. 76, 79 (C.A.A.F. 2017) (additional citation omitted). “The third prong is 

satisfied if the appellant shows ‘a reasonable probability that, but for the 

error [claimed], the outcome of the proceeding would have been different.’” Id. 

(quoting United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017)). 

b. Analysis

The appellant argues that he detrimentally relied on the government’s 

concession and the military judge’s ruling that competence and capacity were 

not at issue. He contends the military judge’s decision to instruct the 

members on RMR’s competence and capacity to consent violated his dueprocess right to a fair trial. He also asserts that the instructions provided by 

the military judge were inaccurate and incomplete because the instructions 

failed to identify the condition that could have rendered RMR incompetent to 
United States v. Gomez, No. 201600331

15

consent and also failed to provide the scienter43 necessary to discourage 

arbitrary or discriminatory enforcement. We disagree. 

First, the military judge did not finally rule, nor did the government 

concede, that competence and capacity were not at issue.

The military judge’s ruling was limited to precluding the government 

from arguing competence and capacity and not a final ruling that competence 

and capacity were not at issue in this case.

44 We understand the military 

judge’s ruling in the context in which it was made—following the 

government’s dismissal of the incapacity offenses and prior to trial on the 

merits and based on proffers by the parties, review of available documents, 

and abbreviated argument. The ruling cannot be fairly taken to be a legally 

dubious alteration of the remaining offenses, all of which implicated the 

“freely given agreement to the conduct at issue by a competent person.” Art. 

120(g)(8)(A), UCMJ. If, as the appellant implies without citation to authority, 

this preliminary order was not subject to modification by the military judge, 

it would be contrary to the “law of the case doctrine”45 as well as the military 

judge’s “primary responsibility for ensuring the members are properly 

instructed” on matters raised by the evidence. Ober, 66 M.J. at 405 (emphasis 

added) (citation and internal quotation marks omitted). The appellant’s

argument also ignores a military judge’s explicit authority to change “a ruling 

made by that or another military judge in the case except a previously 

granted motion for a finding of not guilty, at any time during the trial.” RULE 

FOR COURTS-MARTIAL (R.C.M.) 801(e)(1)(B), MANUAL FOR COURTS-MARTIAL

(MCM), UNITED STATES (2012 ed.). To the extent the TDC thought that he 

had convinced the military judge to remove part of the statutory definition of 

consent from the trial, he cannot claim unfair surprise at the military judge’s 

decision to ultimately adopt a correct view of the law—one that the TDC 

seemed to share—particularly when the TDC was responsible, in part, for 

introduction of evidence that placed RMR’s competence in issue.

46

Nor did the government concede that competence and capacity were not 

at issue. To the contrary, the TC argued capacity and consent were 

 

43 “The terms ‘scienter’ and ‘mens rea’ are often used interchangeably.” United 

States v. Haverty, 76 M.J. 199, 204, n.7 (C.A.A.F. 2017).

44 Record at 36-39.

45 United States v. Ruppel, 49 M.J. 247, 253 (C.A.A.F. 1998) (In military 

jurisprudence the “law of the case [doctrine] only applies to final rulings and does not 

restrict a military judge’s authority or discretion to reconsider and correct an earlier 

trial ruling.”) (citation omitted).

46 Record at 366-67, 381, 442; AE XIX.
United States v. Gomez, No. 201600331

16

potentially relevant to the abusive sexual contact specification since RMR 

had no independent recollection of the appellant performing oral sex on her.

And the military judge acknowledged the government had not conceded this 

issue when he declined to provide the defense-requested instruction discussed 

above. 

Second, the military judge’s instructions on capacity and consent were 

accurate and consistent with the statutory definition of consent,

47 and the 

definition of key terms in United States v. Pease.

48

After the military judge declined to give the defense-requested instruction 

that RMR’s capacity to consent was not an issue for the members to decide,

the TDC acknowledged that he wanted the military judge to provide the 

 

47 Record at 496-97 (“[T]he government also has the burden to prove beyond a 

reasonable doubt that [RMR] did not consent to the physical acts. ‘Consent’ means a 

freely given agreement to the conduct at issue 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 use of force, threat of force, or 

placing another person in fear does not constitute consent. . . . Lack of consent may 

be inferred based on the circumstances. All the surrounding circumstances are to be 

considered in determining whether a person gave consent or whether a person did 

not resist or cease [sic] to resist only because of another person’s actions. A sleeping, 

unconscious, or incompetent person cannot consent to a sexual act. The government 

has a burden to prove beyond a reasonable doubt that the consent to the physical acts 

did not exist. . . . Consent means a freely given agreement to the conduct at issue by 

a competent person. A competent person is simply a person who possesses the 

physical and mental ability to consent. An incompetent person is a person who lacks 

either the mental or physical ability to consent. 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.

A person is incapable of consenting when she lacks the cognitive ability to 

appreciate the sexual conduct or the physical or mental ability to make and 

communicate a decision about whether she agrees to the conduct.”). See also Art.

120(g)(8)(A)-(C).

48 75 M.J. 180, 185 (C.A.A.F. 2016) (approving definitions of three Article 120, 

UCMJ, terms including: (1) “competent person as a person who possesses the 

physical and mental ability to consent;” (2) “incompetent person as one who lacks 

either the mental or physical ability to consent due to a cause enumerated in the 

statute,” and (3) “incapable of consenting as lack[ing] the cognitive ability to 

appreciate the sexual conduct in question or [lacking] the physical or mental ability

to make and to communicate a decision about whether they agreed to the conduct”)

(citations and internal quotation marks omitted).
United States v. Gomez, No. 201600331

17

“Pease definitions.”49 Because the TDC did not object to the draft instructions 

provided for his review by the military judge, or to the instructions ultimately 

given to the members, we review for plain error.

50

The statutory definition of consent is “a freely given agreement to the 

conduct at issue by a competent person.”51 Therefore, “[a] full definition of 

consent includes [the] definition of competence to consent.” United States v. 

Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (citations omitted).

52 As a 

result, we find no error with the military judge’s decision to instruct the 

members regarding what constitutes a “competent person” for purposes of 

defining consent, nor do we find error in the instructions provided.

Significantly, the military judge’s instructions neither transformed the 

charged specifications into Article 120(b)(3)(A), UCMJ, specifications nor 

alleviated the government’s affirmative responsibility to prove beyond a 

reasonable doubt that RMR did not, in fact, consent. The military judge 

instructed the members that the government had the burden to prove beyond 

a reasonable doubt that RMR did not consent at least three times. “Absent 

evidence to the contrary, [we] may presume that members follow a military 

judge’s instructions.” United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 

2000) (citations omitted).

Third, the appellant failed to establish that the instructions provided by 

the military judge were inaccurate, incomplete or constituted plain error. 

Even if we were to assume without deciding that any instruction should 

have identified the condition that rendered RMR incompetent to consent and 

should also have required that the appellant “knew or reasonably should 

have known” of that condition, and that the military judge erred in failing to 

so instruct, the appellant has not established plain error. Specifically, the 

appellant has not met his burden of showing “a reasonable probability that, 

but for the [errors claimed], the outcome of the proceeding would have been 

different.” Lopez, 76 M.J. at 154 (citation and internal quotation marks 

omitted).

It is uncontroverted that prior to engaging in the charged sexual 

misconduct the appellant: knew RMR had consumed enough alcohol to render 

 

49 Record at 418-19. 

50 Id. at 491.

51 Art. 120(g)(8)(A), UCMJ.

52 In Long, the military judged instructed the members that “[c]onsent means 

words or overt acts indicating a freely given agreement to the sexual conduct by a 

competent person.” 73 M.J. at 543.
United States v. Gomez, No. 201600331

18

her very drunk; knew she was sick and vomited more than once due to the 

alcohol she consumed; and knew she was so physically impaired by the 

alcohol she consumed that she had to be carried to his barrack’s room. It is 

also uncontroverted that the appellant performed oral sex on RMR and that 

RMR had no independent recollection of that sexual contact. Therefore, if the 

military judge had instructed the panel members on the presumed 

appropriate listed condition and mens rea, the panel would have found that 

RMR was severely impaired by alcohol, and that the appellant knew of this 

impairment prior to engaging in the charged sexual conduct. 

The appellant failed to demonstrate “a reasonable probability that, but for 

[the the military judge’s failure to instruct on the specific condition that 

caused RMR’s incompetence and the mens rea requirement], the outcome of 

the proceeding would have been different.” Id. Because the appellant failed to 

establish the required prejudice, we conclude that the military judge did not 

plainly err in instructing the members. 

We find no error, and certainly no plain error, in the military judge’s 

instructions or in his decision to use the Pease instruction to further explain

to the members what constitutes a competent person.

C. Vagueness

The appellant argues, as applied in this case, the term incompetent was 

unconstitutionally vague because it neither provided him notice of the 

prohibited conduct nor defined a standard of guilt that avoids arbitrary 

enforcement. 

The government avers that the TDC waived any objection to the 

definition of incompetent when he requested and received the Pease 

instruction. The government argues that even absent waiver the appellant is 

entitled to no relief as the CAAF has endorsed the definition in Pease, and 

the appellant identified no binding authority in support of the proposition 

that an ordinary person cannot understand that definition. We agree the 

appellant is entitled to no relief.

1. Law

“Due process requires fair notice that an act is forbidden and subject to 

criminal sanction.” Vaughan, 58 M.J. at 31(citation and internal quotation 

marks omitted). “It also requires fair notice as to the standard applicable to 

the forbidden conduct.” Id. (citing Parker v. Levy, 417 U.S. 733, 755 (1974)). 

“Void for vagueness simply means that criminal responsibility should not 

attach where one could not reasonably understand that his contemplated 

conduct is proscribed.” Parker, 417 U.S. at 757 (citation and internal 

quotation marks omitted). “In determining the sufficiency of the notice a 

statute must of necessity be examined in the light of the conduct with which 
United States v. Gomez, No. 201600331

19

a defendant is charged.” Id. (citation and internal quotation marks omitted).

The CAAF has found such notice in the Manual for Courts-Martial, federal 

law, state law, military case law, military custom and usage, and military 

regulations. Vaughan, 58 M.J. at 31.

2. Analysis

The appellant avers that the term incompetent is unconstitutionally 

vague because it neither provided him notice of the prohibited conduct nor 

defined a standard of guilt that avoids arbitrary enforcement. He argues,

even assuming the Government could prosecute bodily harm on a theory of 

incompetence due to intoxication, that Article 120(b)(1)(B) fails to delineate

the applicable standard for whether a person is competent to consent.

Bodily harm in this case is a nonconsensual sexual act or contact, where

consent means a freely given agreement to the conduct at issue by a 

competent person. At trial, the military judge instructed on the meaning of 

both an “incompetent person” and a “competent person” in accordance with 

Pease. Between the two instructions, the military judge provided the 

members a reasonably understandable standard for determining whether a 

person is competent to consent to sexual conduct. 

We find the appellant’s arguments that the term incompetent is void for 

vagueness unconvincing. The appellant was on reasonable notice that his 

conduct was subject to criminal sanction. This issue is without merit.

D. Legal and factual sufficiency 

The appellant avers the evidence is both legally and factually insufficient 

to prove any of the charged sexual offenses or, alternatively, that the 

evidence is factually insufficient to overcome his reasonable mistake of fact as 

to consent. Specifically, he alleges there is no evidence that RMR 

communicated, through words or conduct, a lack of consent prior to the 

sexual activity, nor are there words, conduct, or circumstances sufficient to 

show the appellant had reason to believe that RMR was not consenting to the 

sexual activity. We disagree.

We review for both legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31 

M.J. 270, 272 (C.M.A. 1990)); see also Art. 66(c), UCMJ. When reviewing for 

legal sufficiency, we ask whether, considering the evidence in the light most 

favorable to the prosecution, a reasonable fact-finder could have found all the 

essential elements beyond a reasonable doubt. United States v. Turner, 25 

M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). In evaluating factual sufficiency, we determine whether, after 

weighing the evidence in the record of trial and making allowances for not 
United States v. Gomez, No. 201600331

20

having personally observed the witnesses, we are convinced of the appellant’s 

guilt beyond a reasonable doubt. Id. at 325.

The appellant was convicted of sexually assaulting RMR by penetrating 

her vulva with his penis twice, once in the shower and moments later on his 

bed, and penetrating her vulva with his finger on his bed. He was also 

convicted of abusive sexual contact for placing his mouth on her vulva. A

conviction for each sexual offense required proof beyond a reasonable doubt of 

the alleged sexual act or contact and that the act or contact was without 

RMR’s consent.

1. Evidence of the sexual acts and sexual contact

The evidence that the appellant committed the alleged sexual acts and 

sexual contact is overwhelming and undisputed.

RMR testified the appellant penetrated her vulva with his penis in the 

shower and then penetrated her vulva with his finger and penis on his bed.

Her testimony was corroborated, in part, by the appellant and by forensic 

evidence. The appellant admitted penetrating RMR’s vulva with his penis in 

the shower and on his bed, and performing oral sex on RMR during the 

NCIS-recorded phone conversation with RMR and apologized for having sex 

with RMR during that call and on other occasions. In addition, his DNA, 

including spermatozoa found on swabs taken from RMR’s vagina, and his 

semen DNA, found in her underwear, corroborated penile penetration.

The appellant is the sole source of evidence that he placed his mouth on 

RMR’s vulva. During the recorded phone conversation he informed RMR that 

he “did some pretty crazy things” like performing oral sex on her, 

commenting that it was his “first time.”53 We are convinced beyond a 

reasonable doubt that the appellant committed the charged sexual acts and 

sexual contact.

2. Evidence of bodily harm and lack of consent

We find beyond a reasonable doubt that each sexual act and contact 

constituted “bodily harm” and that RMR did not consent to the sexual 

conduct at issue. 

First, RMR’s testimony that she expressed her lack of consent through 

words and conduct is credible, notwithstanding her limited memory. Her 

testimony that she remembered being bent over in the shower with the 

appellant behind her, penetrating her vagina with his penis was consistent 

with his admission of engaging in intercourse in the shower. Her recollections 

 

53 PE 12. 
United States v. Gomez, No. 201600331

21

of experiencing difficulty moving and speaking and having to concentrate to 

move her arm and speak were consistent with her level of intoxication. We 

find her testimony that she tried to nudge or elbow the appellant, then stood 

up, turned around, and said “No,” compelling and consistent with the type of 

traumatic memories often recalled in such circumstances, according to expert 

testimony. Likewise, we find her testimony about being “laid down on [her]

side,” feeling the appellant’s fingers and then his penis inside her vagina, and 

trying to get him to stop first using her arms and then saying ‘No,’” 

consistent with her level of intoxication and and also consistent with the type 

of traumatic memories often recalled in such circumstances.54

Second, we find RMR’s testimony that she did not consent to the sexual 

acts or contact credible and corroborated, in part, by the appellant’s 

statements.

Notably, in three conversations with RMR after the charged misconduct, 

the appellant made no claim that she consented to the sexual conduct. 

Instead, he admitted engaging in the charged sexual acts, evaded or provided 

unconvincing answers to RMR’s probing questions, and repeatedly 

apologized.

While driving RMR back to the Us’ apartment the morning after the 

charged misconduct and after RMR acknowledged that she was “mad” at the 

appellant, he said, “he just wishes he made better decisions that night.”55 In a 

later text conversation, the appellant neither disputed RMR’s claim that he 

knew she was not interested in sexual activity nor claimed that she 

consented. When RMR asked how he could justify undressing her and putting 

her in the shower without her consent, he unconvincingly replied, “I was 

drunk I liked you idk (sic) I thought you were thinking the same as me that’s 

why I’m saying I’m sorry . . . Truth you were drunk so was I okay[.]”

56 During 

that conversation, the appellant said he was sorry at least five times and 

after additional prompting texted, “I’m sorry for having sex with you.”57

Several weeks later, the appellant repeated this pattern in the NCISrecorded phone conversation. He admitted to committing the sexual acts and 

again apologized to RMR with no claim that she consented. He also provided 

new insight into what he did and why. When RMR asked why he had sex 

with her in the shower when she was “super drunk” and smelled of vomit, he

 

54 Record at 198-200.

55 Id. at 203.

56 PE 3 at 4-5.

57 Id. at 6.
United States v. Gomez, No. 201600331

22

answered, “you were cleaning yourself – such a turn on – that’s a turn on 

yeah.”58 In response to RMR’s questions regarding what happened that night, 

the appellant admitted he did some “pretty crazy things like [performing oral 

sex on her].”59 RMR had not recalled or reported the oral sex. The recording of 

this entire exchange is particularly significant evidence. 

We find the absence of any assertions or plausible evidence of consent in 

these last two recorded conversations significant as they followed RMR’s 

representations that she was blacked out due to alcohol intoxication and 

could not remember details of what happened. We also find the appellant’s 

repeated apologies evidence a consciousness of guilt. See United States v. 

Quichocho, No. 201500297, 2016 CCA LEXIS 677, unpublished op. (N-M. Ct.

Crim. App. 29 Nov 2016).

3. Mistake of fact as to consent

After careful review of the evidence, we are convinced beyond a 

reasonable doubt that the appellant did not honestly hold the mistaken belief 

that RMR consented, and even if he did, any such mistaken belief was not 

objectively reasonable. See R.C.M. 916(j)(1).

In conclusion, we find RMR’s testimony to be credible, consistent even 

through the crucible of extensive cross-examination, and corroborated by 

other evidence. The appellant’s admissions that he committed the two 

charged acts of penile penetration and oral sex, and his later remorse 

evidencing his consciousness of guilt weigh heavily in our determination. 

Based on the record before us, and considering the evidence in the light 

most favorable to the government, a reasonable fact finder could have found 

all the essential elements of the charged offenses beyond a reasonable doubt. 

Turner, 25 M.J. at 324. After weighing all the evidence and recognizing that 

we did not see or hear the witnesses, we are also convinced that the appellant 

is guilty beyond a reasonable doubt. Id. at 325.

E. Erroneous admission of evidence 

The appellant avers the military judge abused his discretion by admitting 

evidence of RMR’s consumption of alcohol. 

“Where an appellant has not preserved an objection to evidence by 

making a timely objection, that error will be forfeited in the absence of plain 

error.” United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007) (citing 

MILITARY RULE OF EVIDENCE 103(d), MCM, UNITED STATES (2016 ed.)). “A 

 

58 PE 12.

59 Id.
United States v. Gomez, No. 201600331

23

timely and specific objection is required so that the court is notified of a 

possible error, and so has an opportunity to correct the error and obviate the 

need for appeal.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) 

(citation and internal quotation marks omitted). The appellant “has the 

burden of establishing (1) error that is (2) clear or obvious and (3) results in 

material prejudice to his substantial rights.” Id. (citing Brooks, 64 M.J. at 

328).

The appellant did not object to the evidence of RMR’s consumption of 

alcohol. In fact, the TDC acknowledged the relevance of this evidence. The 

relevance of RMR’s consumption of alcohol to each sexual offense alleged is 

readily manifest in this case. See Art. 120(g)(8)(B), UCMJ (“[a]ll the 

surrounding circumstances are to be considered in determining whether a 

person gave consent”); See also United States v. Clifton, 35 M.J. 79, 81 

(C.A.A.F. 1992).

There was no error, much less plain error, in admitting evidence of RMR’s 

consumption of alcohol.

III. Conclusion

The findings and sentence, as approved by the CA, are affirmed. 

Senior Judge HUTCHISON and Judge FULTON concur.

 For the Court

R. H. TROIDL

Clerk of Court