## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant GEORGE D. BROWN United States Army, Appellant

ARMY 20130177

Seventh U.S. Army, Multin ational Training Command Joshua S. Shuey, Military Judge
Lieutenant Colonel David E. Mendelson, Staff Judge Advocate

For Appellant: Captai n Patrick A. Crocker, JA (arg ued); Colonel Ke vin Boyle, JA;
Lieutenant Colonel Peter Ka geleiry, Jr.; Major Vincent T. Schuler, JA; Captain Patrick A. Crocker, JA (on brief).

For Appellee: Captain Carli ng M. Dunham, JA (argued); Colonel John P. Carrell, JA; Lieutenant Colonel Ja mes L. Varley, JA ; Major Catherine L. Brantley, JA; Captain Daniel M. Goldberg, JA (on brief).

21 November 2014

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

---------------------------------

TELLITOCCI, Judge:

A panel consisting of offi cer and enlisted members si tting as a ge neral courtmartial convicted appellant, contrary to hi s pleas, of one specifi cation of aggravated sexual assault, in violat ion of Article 120, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 920 (2006 & Supp. V 2012). 1 The pane l sentenced appellant to a bad-conduct discharge, conf inement for six months , forfeiture of all pay and allowances, and redu ction to the grade of E- 1. The convening authority approved the adjudg ed sentence.

1 Appellant was acquitted of one specification of assaul t consummated by battery, in violation of Article 128, UCMJ.BROWN—ARMY 20130177

2 This case is before us pursuant to Article 6 6, UCMJ. Appellant raises numerous assignments of erro r, one of which merits discussion but no relief. 2

FACTS

In the early morning of 3 June 2012, appella nt and Ms. AB en gaged in sexual intercourse in the appellant’s hotel room in Nuremburg, Germ any. Earlier that evening, Ms. AB, a 17-year-old local national, ha d been drinking with the appellant, whom she had just met, and others at a night club. Witnesse s attributed various levels of intoxication to AB, but everyone agreed that she was intoxicated to such a degree that she vomited in the street outside the club and the group decided it was best to take her to appellan t’s hotel room to re cover. Appellant vol unteered to stay
behind in the room to keep an eye on AB.

AB’s recollection of events throughout the evening and in the hotel is
intermittent. She testified that she did not consent to intercourse with appellant, that she was unable to resist, and that “she coul d see what was happeni ng but couldn’t do anything.” After the sexual act, AB got under the bed co vers and went to sleep. Shortly thereafter, appellan t woke up AB, got her out of bed, assisted her with putting on her clothing, and told her she had to leave the room. AB testified that appellant then escorted her to a pedestrian area near the hotel and left her standing there while he proceeded back to the club. Sometime thereafter, AB returned to the
street outside of the cl ub crying while shouting that she had been raped.

The government charged appella nt with one specificatio n of aggravated sexual assault by engaging in a sexual act with AB , “who was substantially incapacitated.” At trial, appellant filed a motion requesting the military judge inst ruct the panel with
a modified versi on of the subs tantial incapacitation inst ruction from the Military Judge’s Benchbook. De p’t of the Army, Pam. 27-9, Le gal Services: M ilitary Judges’ Benchbook [hereinafter Benc hbook], para. 3-45-5d (1 Ja n. 2010). The version proposed by the defense (as modified by strike-outs fro m the Benchbook version and substitution as highli ghted below) read:

“Substantially inca pacitated” and “substantially incapable” mean that level of mental impairment due to consumption of alcohol, drugs, or similar subs tance; while asleep or unconscious; or for other reasons; which rendered the alleged victim an individual unable to appraise the nature of the sexual conduct at i ssue, unable

2 Appellant also pers onally raises three issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ), none of which merit discussion or relief.BROWN—ARMY 20130177

3 to physically comm unicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions or to decline participation in the sexual act

.

The military judge denied the request to strike language from the Benchbook, but the military judge did ad d the language requ ested by appellant in his second proposed addition—that is “ unable to decline participati on in the sexual act.” The version of the instruction ultimately provided by the military judge was:

“Substantially incapa citated” means that level of mental impairment due to consumptio n of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the allege d victim unable to appraise the nature of the sexual conduct at i ssue, unable to physically comm unicate unwillingness to engage in the sexual conduct at issue, unable to decline participation in the sexual act, or otherwise unable to make or communicate competent decisions.

LAW AND DISCUSSION

In the pertinent assignment of error, appellant alleges:

THE MILITARY JUDGE ABUSED HIS DISCRETION BY
USING THE TERM “COMP ETENT DECISION” TO
DEFINE “SUBSTANTIALLY INCAPACITATED” IN THE JURY INSTRUCTION, THEREBY LESSENING
THE GOVERNMENT’S BURDEN OF PROOF FOR THE
ELEMENT OF SUBSTANTIAL INCAPACITATION.

An allegation that the pane l members were improperly instructed is an issue
that we review de novo. United States v. Garner , 71 M.J. 430, 432 (C.A.A.F. 2013);
United States v. Ober , 66 M.J. 393, 405 (C.A.A.F. 2008). Wh en instruct ional error regarding the elements of a crime is found, the error must be tested for prejudice
under the standard of harmless beyond a reasonable doubt. United States v. Upham

, 66 M.J. 83, 86 (C.A.A.F. 2008 ). The instructions given to a panel are reviewed “in
the context of the overall mess age conveyed” to the panel. United States v. Prather

, 69 M.J. 338, 344 (C.A.A .F. 2011) (quoting Humanik v. Beyer , 871 F.2d 43 2, 441 (3d Cir. 1989)).

At the outset, we note the language “otherwise unable to make or communicate competent decisi ons” in the Benc hbook instruction is not found in Article 120, UCMJ. Ar ticle 120 only uses the word “competent” in explaining theBROWN—ARMY 20130177

4 affirmative defense of co nsent relative to a “competent person.” UCMJ art. 120(g)(8). In the Be nchbook definition of “substantially incapacitated,” the object modified by “compete nt” is not a “person” as in Ar ticle 120, but is “decisions.”
There is no ex planation for this change of language in the Be nchbook and neither the parties nor this court have been able to de termine the source of, or rationale behind, this change.

Appellant argues the stan dard, unmodified Benchbook version, would have allowed the members to find gu ilt if they decide d that AB made a “bad” decision. Put another way, due to th e instruction given, the me mbers could have made a determination that a poor exercise in judgment or a bad decision equals an “incompetent” one. Therefor e, under this theo ry, the members could have found AB was not capable of ma king competent decisions and wa s, therefore, substantially incapacitated. We disagree with appellant’s argument.

In addition to the stan dard Benchbook in struction regarding substantial incapacitation, the military judge properly instructed the panel regarding consent to include the following:

[C]onsent is a defens e to that charged offense. “Consent” means words or overt acts indicating a freely given agreement to the sexual conduc t by a competent person. . . . . A person cann ot consent to sexual activ ity if that person is substantia lly incapable of ap praising the nature
of the sexual c onduct at issue due to mental impairment or
unconsciousness resu lting from the consumption of alcohol, drugs, or similar su bstance, or otherwise is substantially incapable of physically declining participation in the sexual conduct at issue; or substantially incapable of physically communicating unwillingness to engage in the sexual co nduct at issue. The prosecution has the bu rden to prove beyond a
reasonable doubt that consent di d not exist. Therefore, to find the accused guilty of the offense of aggravated sexual assault, as alleged in the Specification of Charge I, you must be convinced beyond a re asonable doubt that, at the
time of the sexual act alle ged, [AB] did not consent.

The argument that the subs tantial incapaci tation instruction lessened the government’s bu rden is, at best, strained. Th e instruction give n by the military judge contained language not included in the statutory definition of “substantially incapacitated.” Howe ver, we are unable to conclude that such an instruction lessened the government’s burden or that it prejudiced the ri ghts of appellant.BROWN—ARMY 20130177

5 The military judge defined consent in terms of a comp etent “person” and not a
“decision.” Since “substantia l incapacitation” is a condition under wh ich a person is incapable of giving legal consent, the underlying, de terminative finding is whether consent was or was not given. 3 Here, the panel was prop erly instructed regarding consent and they were charge d that the government had th e burden to pr ove beyond a
reasonable doubt that AB did not consent. As a result, in convicti ng appellant, the panel necessarily found that AB did not consent becau se consent was not freely given by a “compet ent person.”

Assuming, arguendo, that utilizing the use of the phrase “competent decisions” was error, we are convinced that in the context of this case and considering the entirety of the instructio ns given, any such error was harmless beyond a reason able doubt. Accord United States v. Cartwright , ACM 37641, 2013 CCA LEXIS 735 (A.F. Ct. Crim. App 15 Aug. 2013); United States v. Perry

, NMCCA 201100273, 2012 CCA LEXIS 2008 (N.M. Ct. Cr im. App. 31 Ju l. 2012).

CONCLUSION

Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.

Senior Judge COOK and Judge HAIGHT concur.

FOR THE COURT:

SHELLEY GOODWIN-MATHERS Deputy Clerk of Court

3 Giving consent can be viewed as a decision or, at a minimum, as a manifestation of a mental process or calculation. This is demonstrative of just how closely intertwined are the concepts “substantially incapacita ted” and “substantially capable,” with only an “abstract distinction” between them. Prather , 69 MJ. 338.