## UNITED STATES ARMY COUR T 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 Theate r 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 Da niel D. Derner, JA.

31 March 2016

---------------------------------- 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 sexu al abuse of child in violation of Article 120b, Uniform Code of Military Justic e, 10 U.S.C. § 920b (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for one year, forfeitu re 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-condu ct discharge, confinement for twelve months, and redu ction 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 warra nts 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 ap plies this “substanti al basis” test by determining whether the record raises a su bstantial question about the factual basis of appellant’s guilty plea or the law un derpinning 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 provid ent, the military judge may co nsider the stipulation of fact, the colloquy with appellant, and any re asonable 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. 53 5, 540, 40 C.M.R. 247, 252 (1969)).

In his Grostefon submission, appellant asserts bo th specifications to which he pleaded guilty fail to state an offense and shou ld be set aside. Specifically, appellant believes “no reasonable fact-finde r” could find he co mmitted 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 anyt hing you want and I won’t do anything more,” or words to that effe ct, and, “Would you tell any one if I kiss you,” or words to that effect. At trial, after admitting a stipulation of fact (P rosecution Exhibit 1) into evidence, the military judge conducted a colloquy wherei n he described the

elements of Article 120b to appellant, followed by a di scussion of t hose elements

relative to the incident s that are the basis fo r the specifications.

We find the military judge did not ab use his discretion by accepting appellant’s guilty plea. Nothing in the r ecord raises a substan tial question regarding the law or facts related to appellant’s plea during trial. Nonethel ess, appellant asks

this court to consider th e language from the specifica tions in a va cuum, while ignoring the circumstances that frame the cont ext of his statements and his intent at

the time he made them. To do so, we would have to disr egard facts articulated in the stipulation and the co lloquy, including that both offenses occu rred when appellant

woke the victim in the midd le of the night, separated her from appellant’s sleeping family, and uttered the statements to the vict im while they were al one as he harbored the requisite specific intent necessary for committin g a lewd act. In isolation, appellant’s statements could appear benign, however, “[t]he mean ing — or ambiguity — of certain words or phrase s may only become ev ident when placed in context.”

FDA v. Brown & Willi amson Tobacco Corp. , 529 U.S. 12 0, 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 aut hority correct in law and fact. Accordingly, the findings of guilty a nd 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: