UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JESUS M. RODRIGUEZ 

United States Army, Appellant 

ARMY 20150043 

Headquarters, 8th Theater Sustainment Command 

Gregory A. Gross, Military Judge 

Colonel Anthony T. Febbo, Staff Judge Advocate 

For Appellant: Major Andres Vazquez, Jr., JA; Major Brian W. Song, JA. 

For Appellee: Major Daniel D. Derner, JA. 

31 March 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to his pleas, of two specifications of sexual abuse of child in violation of 

Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge, confinement for one year, forfeiture of all pay and allowances, and 

reduction to the grade of E-1. The convening authority approved the findings and 

only so much of the sentence as provided for a bad-conduct discharge, confinement 

for twelve months, and reduction to the grade of E-1. Further, the convening 

authority deferred adjudged forfeitures of pay and allowances until action, and 

waived automatic forfeitures of pay and allowances for a period of six months. 

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

personally raised two matters pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), one of which warrants discussion but no relief. 
RODRIGUEZ—ARMY 20150043 

2

LAW AND DISCUSSION 

We review a military judge’s decision to accept a plea of guilty for an abuse 

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

guilty plea will be set aside on appeal only if an appellant can “show ‘a substantial 

basis’ in law or fact” to question the plea. Id. (quoting United States v. Prater, 32 

M.J. 433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by 

determining whether the record raises a substantial question about the factual basis 

of appellant’s guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at 

322; see UCMJ art. 45; see also Rule for Courts-Martial 910(e). In determining 

whether a guilty plea is provident, the military judge may consider the stipulation of 

fact, the colloquy with appellant, and any reasonable references drawn therefrom. 

United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004) (citing United States 

v. Care, 18 U.S.C.M.A. 535, 540, 40 C.M.R. 247, 252 (1969)). 

In his Grostefon submission, appellant asserts both specifications to which he 

pleaded guilty fail to state an offense and should be set aside. Specifically, 

appellant believes “no reasonable fact-finder” could find he committed lewd acts by 

saying to a female child under sixteen years of age on two separate occasions, “How 

far would you go with me? We can do anything you want and I won’t do anything 

more,” or words to that effect, and, “Would you tell anyone if I kiss you,” or words 

to that effect. At trial, after admitting a stipulation of fact (Prosecution Exhibit 1) 

into evidence, the military judge conducted a colloquy wherein he described the 

elements of Article 120b to appellant, followed by a discussion of those elements 

relative to the incidents that are the basis for the specifications. 

We find the military judge did not abuse his discretion by accepting 

appellant’s guilty plea. Nothing in the record raises a substantial question regarding 

the law or facts related to appellant’s plea during trial. Nonetheless, appellant asks 

this court to consider the language from the specifications in a vacuum, while 

ignoring the circumstances that frame the context of his statements and his intent at 

the time he made them. To do so, we would have to disregard facts articulated in the 

stipulation and the colloquy, including that both offenses occurred when appellant 

woke the victim in the middle of the night, separated her from appellant’s sleeping 

family, and uttered the statements to the victim while they were alone as he harbored 

the requisite specific intent necessary for committing a lewd act. In isolation, 

appellant’s statements could appear benign, however, “[t]he meaning — or ambiguity 

— of certain words or phrases may only become evident when placed in context.” 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). 
RODRIGUEZ—ARMY 20150043 

3

CONCLUSION 

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

sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED. 

FOR THE COURT: 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: