## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SALUSSOLIA, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOSHUA D. WHITE United States Army, Appellant

ARMY 20170147

Headquarters , Fort Hood G. Bret Batdorff, Military Judge
Colonel Susan K. Arnold , Staff Judge Advocate

For Appellant: Captain Patrick G . Hoffman, JA (ar gued); Lieute nant Colonel Christopher D. Carrier, JA; Capt ain Patrick G. Hoffman, JA (on brief); Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einho rn, JA; Captain Patrick G. Hoffman, JA (on reply t o specified issue).

For Appellee: Captain Marc B. Sawyer, JA (argued); Colonel Ste ven P. Haight, JA;
Lieutenant Colonel Eri c K. Stafford, JA; Major Hannah E. Kaufma n, JA; Captain Marc B. Sawyer, JA (on brief and supplement al brief).

8 March 2019

--------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge: (Part I – S uppression of Admissions)

Appellant stands convicted of s exually assaulting two victims, one adult (BC),
and one minor. 1 On appeal, appellant asserts the military judge abused his di scretion by denying appellant’s motion t o suppress his admissions to a c ivilian detective. We

1 A panel sitting as a g eneral court-martial with enlisted repre sentation convicted appellant, contrary to his pleas, of one specification of sexua l assault of an adult victim and two specifications of sexual assault of a child, vio lations of Article 120 and 120b, Uniform Code of Militar y Justice, 10 U.S.C. §§ 920 an d 920b (2012) [UCMJ]. The convenin g authority approved the findings and appe llant’s adjudged
sentence of a dishonorable disch arge, three months of confineme nt, forfeiture of all pay and allowances, and redu ction to the grade of E-1.WHITE—ARMY 20170147

2 disagree. The detec tive violated neither appellant’s rights un der Miranda v.
Arizona , 384 U.S. 436 (1966), nor his rights under Article 31(b), UCMJ

.

On brief, appellant argued a civilian detec tive failed to read appellant his rights under Miranda prior to interviewing appella nt in an office of the U.S. Army Criminal Investigation Command (CI D). We specified two additio nal issues:

WHETHER THE MILITARY JUDGE ERRED BY NOT
SUPPRESSING APPELLANT’S STATEMENT THAT
WAS TAKEN WITHOUT APPELLANT BEING ADVISED OF HIS RIGHTS UNDER ARTICLE 31,
UCMJ. SEE, E.G., UNITED STATES V. REDD, 67 M.J. 581, 586 (ARMY CT. CRIM. APP. 2008).

WHERE APPELLANT’S PRETRIAL ADMISSIONS [ARE] BASED ON AN INCORRECT BELIEF THAT A
PERSON CANNOT LEGALLY CONSENT TO SEXUAL INTECOURSE AFTER CONSUMING ALCOHOL, IS HIS
CONVICTION OF THE SPECI FICATION OF CHARGE I
FACTUALLY SUFFICIENT?

We find the military judge did no t err in denying appellant’s s uppression motion as appellant’s interview triggered neither his Miranda rights nor his rights under Article 31(b), UCMJ. 2

BACKGROUND

The issues before us relate to a sexual encounter between appel lant and BC on or about 23 May 2015. A ppellant was later i nterviewed about th at encounter by
Detective Chancellor of the Round Rock, Texas Police Department . The encounter ultimately formed the basis of appellant’s conviction of The Sp ecification of Charge
I at his court-m artial—sexual assault of BC when BC was incapab le of consenting to
the sexual act due to impairment by alcohol.

2 Appellant’s interview with the civilian detective only related to his alleged offense against BC. In light of the entire record, we find appellant’s conviction of sexual offenses against a m inor legally and fact ually sufficient. Aft er due consideration of appellant’s second assignment of error, post-tr ial delay in vio lation of United States

v. Moreno , 63 M.J. 129 (C.A.A.F . 2006), as well as t hose matters persona lly raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we have determined they warrant neither discussion nor relief.WHITE—ARMY 20170147

3 A. BC’s Relationsh ip with Appellant and Her In toxication on 23 May 2015

Appellant and BC met on Tinder, a n internet datin g application. After exchanging several text and Fa cebook messages, t hey met when ap pellant picked BC up at work and drove h er to her home, this being their first in -person encounter. Shortly after arriving at BC’s residence, appellant and BC enga ged in consensual
sexual intercourse. Appellant and BC met nearly a dozen times in total. Each meeting led to sexual intercourse, and each meeting—except the first—involved the consumption of alcohol. BC usuall y consumed more alcohol than appellant.

On the evening of 23 M ay 2015, BC went out t o a local club with two acquaintances, Ms. Smith and Mr . Saucedo, neither of whom had a ny prior knowledge regarding BC’s experien ce with alcohol; this was thei r first night out together. The three arrived at t he club in Mr. Saucedo’s vehic le sometime between
2200 and 2230 hours. Wh ile all three drank t hat night, BC cons umed the most. Sometime around midnigh t, appellant arrived at the cl ub where, for about an hour,
he observed BC as s he continued to co nsume alcohol.

Around 0100 hou rs, Ms. Smith and Mr. Sau cedo decided it was tim e to leave. By all accounts, BC was clearly i ntoxicated, requiring assistan ce to get to Mr.
Saucedo’s vehicle. Once at the vehicle, BC became verbally abu sive towards Ms. Smith and Mr. Saucedo, saying, “F --- you. I don’t need the hel p. I don’t want your help,” statements made in apparent response to their plan to dr ive BC home. BC decided she would leave with appe llant. Exiting Mr. Saucedo’s vehicle and grabbing her overnight bag, BC, with appe llant’s assistance, walked to a nd got in appellant’s truck, which was parked approximately thirty to forty yards awa y. Approximately thirty minutes later, they arriv ed at BC’s resid ence where, sho rtly thereafter, they engaged in the s exual activity at issue in The Specification of Charge I.

B. Ms. Smith’s Observatio ns of BC’s Intoxication

Ms. Smith’s observati ons cover the period from when she, Mr. Sa ucedo, and
BC arrived at the club until BC rode away in appe llant’s truck— about 2200 hours
until about 0100 hours.

At trial, Ms. Smith estimated that BC drank anywhere from seven to ten pintsized mixed drink s in addition to “two ounce” shots. Ms. Smith did not testify to the
number of shots BC c onsumed. When previous ly interviewed by ci vilian law enforcement about that night, Ms . Smith indicated BC consumed s ix drinks. At the court-martial, she explained t he numerical discrepancy in drink s by noting that she
did not tell the civ ilian officer a bout the shots BC consumed. When asked about the
amount of alcohol in the drinks, she describ ed the bar tenders a s “heavy pourers,” the result being “more li quor in their d rinks than at other bars.”WHITE—ARMY 20170147

4 Regarding BC’s intoxi cation, Ms. Smith tes tified: BC became “lo uder;” had “fallen;” needed help getting up ; was “no longer really able to control herself [ ] and her movements;” her words were “ very slurred;” a nd, her eyes “s eemed glassy and glazed over.” Ms. Smith also noted that BC needed assistance w alking to Mr. Saucedo’s vehicle as they left t he club, however, she could not recall who provided
that assistance or how.

Ms. Smith could not re call if BC settled her tab before leaving the club.

Once at Mr. Saucedo’s vehicle, Ms. Smith “kind of got into it” with BC, who began “saying things th at weren’t nice.” At that point, BC “de cided that she wasn’t going home with” Ms. Sm ith and Mr. Sau cedo. After telling Ms. Smith “I don’t want to go back with you,” BC grabbed her be longings and went t o appellant’s
vehicle. Ms. Smith noted that BC was neit her unconscious nor p assed out in her presence and when asked if she n eeded help with her belongings, BC replied in the negative.

Ms. Smith did not obse rve how BC got from Mr . Saucedo’s vehicle to appellant’s truck.

C. Mr. Saucedo’s Observations of BC’s Intoxication

Mr. Saucedo’s obser vations cove r the same time period as Ms. Sm ith’s.

While in the club, Mr. Saucedo observed BC consum e approximatel y three pint-sized mixed dri nks and three or four “two ounce” shots. C onsistent with Ms. Smith’s testimony, Mr. Saucedo des cribed the drink s as “very st rong,” “super strong,” and, “s tronger than norma l drinks.”

As the evening progressed, Mr. Saucedo noticed “the alcohol sta rted affecting [BC].” At one point, BC “couldn’t st and by herself,” falling t wice, and was slurring
her words “a little b it.” Following her s econd fall, Mr. Sauce do “knew that we had to go.” In add ition to dropping her purs e and its co ntents on the floor, con tents that
included “a lot of money,” BC wore no und ergarments beneath her dress and “exposed herself to e verybody” in the clu b. After helping her up and getting her purse and its contents back from the bartenders, who policed-up BC’s property from the floor, Mr. Sauce do decided they were l eaving. Although he recalls BC requiring assistance to walk to his vehicle, he did not recall “how [they ] walked her out” to
the vehicle.

Once BC was in the back seat of his vehicle, Mr. Saucedo testif ied BC became “an irate, drunk girl, ” someone Mr. Saucedo n o longer wanted in his vehicle. After getting out of the veh icle, BC went to appe llant’s truck althou gh Mr. Saucedo couldWHITE—ARMY 20170147

5 not provide details of how BC made it to appellant’s truck. At no time, however, did
Mr. Saucedo observe BC unconscious or passed out.

Mr. Saucedo observed BC settle her tab before leaving the club.

D. Appellant’s Observatio ns of BC’s Intoxication

Appellant’s observations of BC’ s intoxication wer e consistent w ith that of
Ms. Smith and Mr. Saucedo.

After arriving at the club, some time around midnight, appellan t observed BC order five to six shots, which B C consumed in a one-hour period . He described BC as “way too drunk for my personal liking,” n oting that BC was: “the most drunk I had ever seen her;” “getting worse through the night;” “not her normal self;” and, “stupid drunk.” Her speech was slurred; she was stumbling; she fell, exposing
herself to others in t he club; and when sh e left the club, she had to “be carr ied out of the bar by one of her friends.”

When describing BC’s movement f rom the club to M r. Saucedo’s ve hicle and ultimately to appellan t’s truck, the appella nt was clear that B C required assistance throughou t.

During a 15 June 2015 p retextual call from BC, appellant descri bed BC as “already sloshed ” when he arrived at the club. He went on to t ell BC:

You couldn’t even s peak mostly Engl ish. And then you
had at least six sho ts before I finally got you out of the
bar. I had to - - I had to - - some gay du de carried you out and then you like passed ou t on the ground. I picked you up and threw you in my truck.

Notwithstanding the above description, appellant also described BC as both “coherent” and not “completely i mmovable” when ap proaching and embarking his truck. Appellant described BC as intermittently asleep on the drive from the club to
her residence.

Once at her residen ce, appellant got BC to her front door by pi cking her up, throwing her over his shoulder, and carry ing her, describing he r as “dead weight.” He went on to explain, “you car ry dead weight, you don’t drag i t.” Once at the front door, however, BC was able to sta nd and unlock her residence by inputting her door’s security code, a code that the appellant d id not know. Once inside the residence, appellant a ssisted BC upstairs b y having his arm aro und her back and posterior because she was “stumb ling” and having difficulty wal king.WHITE—ARMY 20170147

6 E. Appellant’s Description of th e 23 May 2015 Se xual Encounter

According to appellant, BC starte d kissing him as he prepared t o leave her residence after gett ing her to her room. A ppellant claimed the kissing led to the two undressing themselves , each performi ng oral sex on the other, a nd eventually engaging in sexual intercourse. The appellant then cleaned him self up in the bathroom, BC dressed a nd got under th e covers of her bed, and a ppellant left for the evening.

Prior to leaving, how ever, appellant texte d a photograph to Mr. Saucedo of BC asleep in her bed as he prom ised he would do, showing that B C was home and okay. He also p laced a garbage pail nex t to her bed as she req uested.

At the close of the appellant’s 18 June 2015 interview with Det ective Chancellor, an inte rview discussed in subparagraph “ G ,” below, the appellant said
the sex with BC was consensual. H e further stated: although sh e was “intoxicated” “past her normal level of drinking,” neede d assistance getting where she was going, and, slurred her speech; she was nonetheless awak e, removed her own clothing,
initiated the sexual e ncounter by kissing ap pellant, never pass ed out, and never expressed any unwilling ness to engage in th e sexual a ctivity. Appellant ended his interview by noting that BC “was coherent an d conscious the ent ire time during the
intercourse.”

F. BC’s Limited Version of Events

For reasons unclear from the reco rd, the government did not cal l BC to testify, either on the merits or sentencing. Tha t said, the pa nel was exposed to some
information attributab le to BC, albeit in t he form of hearsay. 3

On 3 June 2015, BC made a pretextu al telephone ca ll to appellan t in which she told appellant she was “late ”—meaning she might be pregnant —and asked appellant if he used a condom or “pulled out ” during their last sexual encounter. Appellant replied, “we always pu ll out.” BC then stated she co uld not remember the events of 23 May 2015, saying, “ I know I got home in the truck but I don’t remember much.” She asked appellant, “Was I awake when you lef t or was I passed out?” Appellant responded, “You w ere awake but were going to b ed.” She then asked if she opened her door w ith her code, to which appellant replied in the
affirmative.

Twelve days later, o n 15 June 2015, BC made another pretextual call. After advising appellant that she was not pregnan t, BC asked appellan t to fill her in on the

3 Appellant neither objected to t his evidence at trial, nor rais ed this issue on appeal.WHITE—ARMY 20170147

7 events of 23 May 2015, reiterating that she could not remember that eveni ng. In response, the appellant told BC:

I go in there and you were a lready sloshed . Like - You couldn’t even speak mostly E nglish. And t hen you had at
least six shots before I final ly got you out of the bar. I
had to - - I had to - - some gay dude carried you out and then you like pass ed out on the ground . I picked you up and threw you in my truc k. Drove you home. And dropped you off. Got you in bed. And I left.

Having confirmed he had to carry her into the house, the appell ant ended the call by observing how fortunate it was th at BC still “knew [her ] code” to the door.

On 1 June 2015, ac cording to Det ective Chancellor, Round Rock Police Department, BC reported she was sexually as saulted, tentatively identifying the appellant as her assailant. 4 Detective Chancellor added:

So the way I structu re my investigation, since I take the information initially that is gi ven to me by the victim, and
I look at that inform ation as being true on its face until we
can determine wheth er or not that inf ormation can be disputed. We have taken several investigative steps through the case. It seemed to corroborate what the victim was telling us and so the next stage in the investigation was to talk to [the appellant]. 5

G. Detective Chancellor’s Interview of Appellant

On or about 1 June 20 15, the Round Rock Police Department recei ved BC’s sexual assault complaint. Detective Chancellor was assigned th e case. After he ascertained his suspect was likel y a solider assi gned to Fort H ood, Detective Chancellor requested assistance from the Fort Ho od Provost Mars hal’s Office (PMO) in identifying the susp ect. The PMO tentati vely identified app ellant as Detective

4 While BC’s report of sexual assa ult appears to b e hearsay, app ellant did not object
at trial and has not raised thi s as an issue on appeal.

5 While Detective Chancellor’s op inion as to the t ruthfulness of BC’s report appears to be impermissible human-lie-de tector testimony, and his opini on as to whether BC’s report was otherwis e corroborated appea rs to be improper o pinion evidence, appellant did no t object at tria l and has not rais ed these issu es on appeal. Under these circumstances, we find this does not warrant relief as pl ain error.WHITE—ARMY 20170147

8 Chancellor’s suspect. BC later confirmed the id entification. Believing appellant
would soon be le aving the milita ry, the Round Rock Police Depar tment coordinated
with the Fort Hood CID office for assistance in interviewing ap pellant, specifically requesting a room on pos t in which to conduc t the interview. A t the time of this request, there w as no active military inve stigation regarding B C’s allegation.

After coordinating wit h CID, two things occu rred: appellant’s u nit made appellant available for an interview by directing that he repor t to the CID office, a directive conveyed telephonica lly by Sergeant (S GT) Addison, a noncommissioned officer in appellant’ s unit; and, the Fort Hood CID office made a room in their
offices available for the interview.

On 18 June 2015, ap pellant met SGT Addison at the Fort Hood CID office, each traveling to the office sep arately and in th eir own vehicl es. No one in appellant’s chain of command and no per son in a position of aut hority over appellant directed him to do anything othe r than show up at the CID offic e. Appellant was
neither directed to submit to the interview nor directed to coo perate with law enforcement. Although SGT Addiso n met appellant at the CID off ice and waited for him in the waiting a rea, he believed his duty ended when appell ant arrived at the CID office. In short, SGT Addis on did not direct appellant to do anything o ther than
meet him at CID.

Once inside the CID office, appellant was interviewed by Detect ive
Chancellor. The interview room w as standar d—square in shape wi th a single desk
and two chairs. The only law enforcement officer present in th e room was Detective Chancellor, who was in civilia n attire. His weapon was on his belt and visible at all times. The room had video capab ility and the interview was bot h recorded and
observed in real-time . Those observin g the intervie w included: Detective Chancellor’s supervising Lieuten ant from the Roun d Rock Police Department; the supervisory CID Special Agent; an other CID Special Agent; and m ultiple military prosecutors. None of the observers entered the interview room and, with the exception of several questions suggested at the close of Detect ive Chancellor’s interview, all questions originated with Detective Chancellor. 6

6 Detective Chancellor testified that his normal interview proce dures entail, prior to ending any inter view, texting or coordin ating with his supervis or or civilian colleague to see if he missed anything o r if anything requires clarification. Consistent with that p rocedure, Detective Chancellor sent his c ivilian Lieutenant a
text that resulted in additional questions being asked, which t he Government agreed originated from mil itary prosecutors. D uring the suppression m otions hearing, the
Government conceded the additiona l questions suggested by milit ary prosecutors and the response s thereto should be supp ressed. The military judge accepted the

(continued . . .)WHITE—ARMY 20170147

9 Appellant was neither Mirandized nor advised of his Article 31( b), UCMJ rights prior to meeting with or being interviewed by Detective Chancellor.

After being introduced to Detec tive Chancellor and within the first two
minutes of the interview—which lasted just over one hour and tw elve minutes—the following colloquy occu rred between the appell ant (A) and Detec tive Chancellor (DC):

DC: I am civilian law enforcement. A: Okay. DC: Alright. A: Okay.
DC: I am not affiliated with the military. Haven’t been in th e military. I’m not affiliated with the military . So, I just want to make sure that there’s a clear designation there. A: Okay. DC: Alright. I mad e a phone call and had these guys set up an interview
room because it seemed like it w ould be easiest for you and als o easiest
for me. A: Okay.
DC: Because like I said. M an - this is a big place.

A: Yes. DC: Alright and I get l ost just coming on post. A: Okay. DC: So. Um. My understanding i s that you had s omebody bring you over - - that you were escorted here.

A: Yes. DC: Okay. I don’t kn ow how that normally works on - - on - - on the military side. A: Okay. DC: But this is a voluntary int erview and you ar e free to go at any time. A: Okay. DC: Alright.

Approximately one minute later, Detective Chance llor advised ap pellant, again, that he was not obligated to speak w ith him, stating: “ There are times where

(. . . continued) government’s concessi on and suppressed the follow-up questions and answers. The evidence contested on appeal is limited to appellant’s response s to questions originating solely from Detectiv e Chancellor, prior to any ques tions from military
prosecutors.WHITE—ARMY 20170147

10 folks say, ‘You know what, I don ’t want to tal k to you,’ and yo u know what, that’s
fine. . . . You don’t have to.”

Near the close of the interview , at the one-hour, three-and-a- half-minute point, the following co lloquy occurred:

A: I want to help with the inve stigation as much as possible. I - - I - - Again I have no feeling I did anything wrong. DC: Right.
A: And that - - that - So bec ause of that I don ’t want to hol d up your - - your work. DC: Right. A: But I’m getting to the point where I feel like I should ha ve someone who knows how to word thing s - - who knows how t o word the answers for your questions bette r than I do. DC: And that’s completely up to you. You c an do that.

A: So.
DC: And like I tol d you before man, you’r e free to go at any time. A: And I know this. And again - - being that - - the fact that I don’t feel I did something wrong - - DC: Right
A: - - I don’t wanna b e like “oh fuck you.”
DC: Yeah.

A: Cause I w anna help. DC: Absolutely.

H. Appellant’s Understanding of Army Law

Toward the end of the appellant’s interview, appellant comes to the
realization that “someone’s accusing me of nonconsensual sex.” While characterizing his dec ision that night as pe rhaps not the best decision, the appellant
was adamant that he did nothin g wrong, noting on s everal occasi ons during his
interview that BC was a willing participant in the sexual activ ity the evening of 23 May 2015. When asked to reconcile his comments, the appellant noted, “the Army is always preaching if alcohol is involved just say no and go h ome.” He then added: “[ ] technically you c an’t give consent if alcohol is involved; ” and, “Acco rding to the Army and what they preach, a ny level of alco hol is nonconse nsual. That’s what
I understand.”

LAW AND DISCUSSION

Appellant contends he wa s entitled to receive Miranda warnings prior to his
interview with Detective Chance llor. We specifi ed the issue of whether appellant
was entitled to receiv e a warning under Arti cle 31(b), UCMJ. W e conclude appellant was entitled to neither.WHITE—ARMY 20170147

11 A. Miranda

A military judge’s ruling on a s uppression motion is reviewed f or an abuse of
discretion. United States v. Dease , 71 M.J. 116 , 120 (C.A.A.F. 2012). Findings of
fact and conclusions of law are reviewed for cl ear error and de novo, respe ctively. United States v. Rodriguez , 60 M.J. 239, 246 (C.A.A.F. 2004). W hen considering a military judge’s ruling on a supp ression motion, the court cons iders the evidence “in the light most favorable t o the prevailing party.” United States v. Reister , 44 M.J. 409, 413 (C.A.A .F. 1996).

Appellant argues that his interview by Detec tive Chancellor tri ggered his rights under Miranda . We disagree.

“No person . . . sha ll be compelled in any criminal case to be a witness against himself[.]” U. S. Const. amend. V. In Miranda , the Supreme Court held, “the prosecution m ay not use statements, w hether exculpatory or inculpatory, stemming from custodia l interrogation of the defendant unless i t demonstrates the use of procedural safe guards effective to secure the privilege against selfincrimination.” Miranda , 384 U.S. at 444. The Court further spe cified that “[p]rior to any questioning, th e person must be warned that he has a rig ht to remain silent, that any statement he does make may be used a s evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id

.

An individua l is only ent itled to a Miranda rights advisal if the individual is in custody while interrogated. Id

. See also

, Berkemer v. McCarty , 468 U.S. 420, 434 (1984) (“a person subjected t o custodial inte rrogation is e ntitled to the benefit of the procedural safe guards enunciated in Miranda , regardless of the nature or severity of the offense of which he is suspe cted or for which h e was arrested”); United States v. Chatfield , 67 M.J. 432, 437 (C.A.A.F. 2009); United States v.

Evans , 75 M.J. 302, 305 (C.A.A.F. 2016).

Whether someone has been subjected to custodial in terrogation d epends on
whether the individual was questioned by law enforcement after being “taken into custody or otherwise deprived of his freedom of action in any s ignificant way.”

Miranda , 384 U.S. at 444. See also

, Yarborough v. Alvarado , 541 U.S. 652, 661 (2004). In evaluating whether an individual was in custody, th e courts look to “how a reasonable p erson in the suspect’s s ituation would perceive h is circumstances.”

Id . at 662 (citing McCarty 468 U.S. at 434). “The sa feguards prescribed by Miranda become applicable as soon as a s uspect’s freedom of action is c urtailed to ‘a degree
associated with formal arrest.’” McCarty , 468 U.S. at 4 40 (quoting California v.

Beheler , 463 U.S. 1121, 1125 ( 1983) (per curiam)). See also

, Stansbury v. California , 511 U.S. 318, 322 (1994) (“In determinin g whether an individu al was in custody, a court must examine al l of the circumstances surround ing the interrogation, but ‘the ultimate inquiry is simply whether ther e [was] a ‘formal arrestWHITE—ARMY 20170147

12 or restraint on freedom of movement ’ of the degre e associated w ith a formal arrest.’”) (quoting Beheler , 463 U.S. at 1125) and Oregon v. Mathiason , 429 U.S. 492, 495 (1977) (per curiam)); United States v. Schake , 30 M.J. 314 , 318 (C.M.A. 1990). “[T]he onl y relevant inqu iry is how a rea sonable man in the suspect’s position would have underst ood his situation.” McCarty , 468 U.S. at 442.

Mere appearance at a police stati on or law enforcement office, without more, does not establish custody. Chatfield , 67 M.J. at 438 (citing Mathiason , 429 U.S. at 495). Factors to consi der in evaluating whe ther a person has b een restrained thus triggering Miranda warnings include: “(1) whether the per son appeared for questioning voluntaril y; (2) the location and atmosphere of the place in which questioning occurred[;] and (3) the length of the questioning.” United States v.

Evans , 75 M.J. 302, 306 (C.A .A.F. 2016) (quoting Chatfield , 67 M.J. at 438).

In applying the above f actors to the appella nt’s case, the firs t factor arguably favors the appellant in that he was direct ed to show up to the Fort Hood CID office. As noted in the backg round section, however , that is the extent of the guidance or direction he received from anyon e in any position of authority. Once at the CID office, and within tw o minutes of meeting Detective Chancellor, the appellant was
advised that “this is a voluntar y interview and you are free to go at any time,” advice the appellant acknowledged immed iately after re ceiving it. App roximately one-hour later, appellant was again advis ed that he was “free to go at a ny time,” to which appellant responded, “And I know this.”

Factors two and three favor the gover nment. Although the inter view occurred in a Fort Hood CID office, Detecti ve Chancellor advised the app ellant that he had nothing to do with the military and that the only reason the in terview was occurring
in the Fort Hood CID office was a s a matter of convenience, con venience to both him and appellant. A ppellant’s interview lasted just over one hour and twelve minutes, a relatively short in terview by all accounts.

The interview atmosphe re and the manner i n which it was conduct ed are best described as cordial, non-confrontational, a nd stress-free—at l east beyond the
normal stress one would expect in speaking w ith a law enforceme nt official.

Nothing in Detective Chancellor ’s demeanor, body language, tone of voice, or actions conveyed any e xpectation of coopera tion on the part of Detective Chancellor nor was anything said or done that prevente d or could be percei ved as limiting appellant’s freedom of movement, up to and includi ng his freedo m to terminate and leave the interview at any time.

A review of the videota ped interview reveal s two individuals en gaged in a simple conversation. Detective Chancellor never raised his voi ce, threatenedWHITE—ARMY 20170147

13 appellant, or engage d in any conduct that could be characterize d as overbearing or coercive in any way.

Considering the totalit y of the circumstances surrounding appel lant’s interview, we find that a reasonable perso n would have believed he was free to leave. In fact, after the first t wo minutes of th e interview, appellant had no
reasonable basis to believe his freedom of action was curtailed to any degree. The only reasonable conclusion to rea ch after the first two minutes of the interview was that appellant was free to get u p and leave at a ny point and he knew it.

Appellant was no t in custody, a Miranda warning was not re quired, and the Military Judge did not err by denying appell ant’s suppression m otion on th at basis.

B. Article 31(b)

We next turn to our specified i ssue, whether the appellant, not withstanding the non-custodial nature of the interview, was entitled to be a dvised of his Article 31(b), UMCJ rights. We find he was not.

Article 31(b), UCMJ states:

No person subject t o this chapter ma y interrogate, or
request any statement from an accused or person suspected
of an offense withou t first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and tha t any statement made by him may be used as eviden ce against him in a trial by courtmartial.

Except in limited circumstances, Article 31(b)’s requirement to advise an accused of his rights does not extend to civilian law enforceme nt personnel. See generally

, United States v. Grisham , 16 C.M.R. 268, 271 (C.M .A. 1954). Civilians need only comply wit h “the principles of l aw generally recogniz ed in the trial of criminal cases in the United States district courts involving s imilar interrogations.”

See Military Rule of Evidence [Mil. R. Evid.] 305(f)(1).

Civilian law enforcement offici als are required to advise a su spect under Article 31(b), UCMJ only in two s ituations: “(1) When the scop e and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity, an d (2) when the civili an investigator acts in furtherance of any military investigation, or in any sense as an ins trument of the military.” United
States v. Redd , 67 M.J. 581, 586 (Ar my Ct. Crim. App. 2008) (quoting Rodriguez , 60 M.J. at 251) (internal quotation marks and further citations om itted).WHITE—ARMY 20170147

14 Neither of the two exceptions noted above apply to the case at bar. When appellant was in terviewed by Detective C hancellor on 18 June 20 15, the only investigation ope n into the alleged ass ault was that by the Rou nd Rock Police Department. No military official was actively doing anything t o investigate the allegations. The only military activity at that date was assis tance in identifying the appellant and the courtesy of providing civilian law enforcemen t a room on the military installation in which to conduct an interview. All qu estions at is sue and the responses thereto originated wit h civilian law enforcement and nothing about the
interview was the result of a ny coordinated effo rt with militar y officials. Even after the interview, the mi litary played no role in Detective Chancel lor’s ongoing investigation and when asked by CID if he n eeded assistance, De tective Chancellor responded in the negative. It w as only after th e civilian Dist rict Attorney declined to prosecute the case that the military assumed an investigativ e posture toward appellant.

“More than a cooperative rela tionship between c ivilian and mili tary authorities is required before civilian authorities will be sub ject to Article 31(b).”

United States v. Garcia , 69 M.J. 658 , 662 (C.G. Ct. Crim . App. 2010) (citing United States v. Payne , 47 M.J. 37, 43 (C .A.A.F. 1997)). See, e.g., Rodriguez , 60 M.J. at 251-255 (military sur veillance support to c ivilian federal agen ts over a five-day period did not transfo rm a civilian in vestigation in to a joint investigation requiring civilian agents to p rovide Article 3 1(b) warnings); United States v. Pinson , 56 M.J. 489 (C.A.A.F. 2002) (military and civilian investigations were separate and independent notwithstanding military assistance in making a sus pect available for a foreign police intervi ew under an internati onal agreement for “ each side . . . to cooperate with each”).

Assistance in the form of identifying the a ppellant, making him available for a voluntary interview, and providi ng an interview room neither me rges an ongoing civilian investigation with a m ilitary investigation that has n ot yet begun nor
transforms an otherwis e independent civilian law enforcement ac tion into action in
furtherance of the mili tary. Under these facts, the civilian l aw enforcement official
did not become an instrumental ity of the military simply becaus e evidence he gathered independent of the milit ary was later us ed by the mili tary. Last, the record is devoid of any evide nce of subterfuge on the part of military officials or an intent to circumvent the UCMJ or appellant’s rights.

The military judge di d not err by declining to suppress appella nt’s statements
to Detective Chancello r. Appellant was not entitled to a recit ation of Miranda or Article 31(b), UCMJ rights prior to his interview with the civi lian detective.

Senior Judge WOLFE and Judge SA LUSSOLIA concur in Part I.WHITE—ARMY 20170147

15 WOLFE, Senior Judge: (Part II – Factual Sufficiency)

We have reviewed the entire rec ord. We are mindful that the tr ial court saw
and heard the witnesse s and we have not. See United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). Consid ering the totalit y of the evid ence—and especially appellant’s admission that he had to carr y BC over his shoulder from his truck to her front door—we find appellant’s c onvictions, incl uding his convi ction of sexually assaulting BC, legally a nd factually sufficient. See id. We note that appellant describes BC’s intoxication differently depending on when she c ould have been observed by independent witnesses, and when he was alone with h er. According to appellant, once they were alone together, BC was transformed fr om a glassy-eyed woman who could not speak Englis h or walk on her own into a com petent, coherent, and sexually aggressive participant in sex. That is, appellant ’s characterization of
BC’s intoxication cha nged markedly when he d escribed situations that were not vulnerable to third-par ty contradiction. T he panel weighed the evidence and convicted appellant. We conclude the p anel got it right.

CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Judge SALUSSOLIA concurs in Part II.

ALDYKIEWICZ, Judge disse nting from Part II:

I respectfully disagre e with my colleagues’ conclusion that app ellant’s conviction of sexually assaulti ng BC is factually sufficient.

Article 66(c), UCMJ, provides that a Court of Criminal Appeals “may affirm only such findings of guilty . . . as it fin ds correct in law a nd fact.” In performing our duty, we must condu ct a de novo review of legal and factual sufficiency. United
States v. Gilchrist , 61 M.J. 785, 793 (Army. Ct. Crim. A pp. 2005) (citing United States v. Washington , 57 M.J. 394, 399 (C.A .A.F. 2002)). The test for factual sufficiency is “whether, after we ighing the evide nce of record and making allowances for not having persona lly observed the witnesses, [t his court is] convinced of appellan t’s guilt beyond a r easonable doubt.” Gilchrist , 61 M.J. at 793 (citing United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987)). This review for factual sufficiency “involves a fresh, impartial look at the ev idence, giving no
deference to the decision of the trial court on factual suffici ency beyond the admonition in Article 66(c), UC MJ, to take into account the fac t that the trial court
saw and heard the witnesses.” Washington , 57 M.J. at 399. “[T]o sustain appellant’s conviction , we must find that th e government has pr oven all essential elements and, taken together as a whole, the par cels of proof c redibly and coherently demonstrate that appel lant is guilty beyond a reasonable doubt. ” Gilchrist , 61 M.J.WHITE—ARMY 20170147

16 at 793 (citing United States v. Roukis , 60 M.J. 925 , 930 (Army Ct. Crim. App. 2005)).

I recognize that a successful sexual assault prosecution invol ving an incapacitated victim does not necessarily require that the vict im testify on the merits. In fact, in many cases, the very nature of the allegat ion at issue will often
result in a vict im who is unable to testi fy to the sexual act i tself. Furthermore, nothing herein shou ld be read as a r equirement to call the vict im in every case. That said, I would find the convicti on factually insufficient for th e reasons th at follow,
one of which is the lack of cont ext in which to place BC’s alco hol consumption, context BC could have easily pr ovided had she tes tified. Inste ad, the panel was left
to assume that the “drunkest I ha d ever seen her” or “stupid dr unk,” descriptions provided by appellant, equaled inca pacitation and an inability to consent to sexual activity.

The government’s cas e consisted entirely of testimony from Ms. Smith, Mr. Saucedo, and statemen ts by appellant in th e form of his 18 June 2015 vid eotaped interview plus 3 Jun e 2015 and 15 Ju ne 2015 pre-text ual phone c all conversations.

Reviewing Ms. Smith’s and Mr. Saucedo’s testimony objectively does not establish an incapacitated vict im. Without a doub t, their test imony establishes an
intoxicated individu al, but not an i ncapacitated on e. That BC required assistance walking, slurred her s peech, fell, had glass y eyes, all observa tions by Ms. Smith, Mr. Saucedo, or both, est ablish intoxicatio n but not incapacita tion. Mr. Saucedo perhaps summed up BC’s condition best, descri bing her as a “dru nk, irate girl.”
When BC left the club and drove off with appellant, she was: c apable of paying her bar tab, which she did ; making her wishes known vis-à-vis telli ng Ms. Smith and Mr.
Saucedo that she wanted to leave with the appellant, which she did; expressing her
frustration with Ms. Smith and Mr. Sauce do, which she did; and, gathering her belongings from and ex iting Mr. Saucedo’s v ehicle without assis tance, which she
did. Neither Ms. Smith nor Mr. Saucedo ever obs erved BC passed out that night or
unconscious. Intoxica tion, even if the wo rst anyone has ever s een, does not necessarily amount t o incapacitation.

This brings us to the appellant’s testim ony and his videotaped interview. Having reviewed both, I find his version of event s consistent w ith the events as
testified to by Ms. Smith and Mr. Sauce do. I also fi nd his tes timony credible. The most difficult p ortion of the appellant’s videotaped interview to reconcile with a finding of not guilty is his descripti on of BC as “dead weight” that he had to throw
over his shoulders as he carried BC from hi s truck to her door. His explanation, however, is not i nconsistent with having to deal with an intoxi cated individual who has fallen asleep on the drive home. The unrebutted evidence e stablished that BC
did not remain in th is condition once at the door. She, not th e appellant, input herWHITE—ARMY 20170147

17 code into the security system and, while ass isted up the stairs , she was not carried up
stairs.

On 3 June 2015, a mere 11 days after the s exual enc ounter at issue, the appellant, having no knowledge he was being recorded o r that BC had filed a sexual assault allegation ag ainst him, was told b y BC, “I kno w I got h ome in the truck but I
don’t remember much.” He was t hen asked, “Was I awake when you left or was I passed out.” He responded: “Y ou were awake but were going to bed.” She then asked, “Did I open the door though with my c ode?” Appellant re sponded, “Yes.” Appellant made clear that, at least at the end of the sexual en counter, BC was
awake—information consistent wit h his 18 June 20 15 videotaped i nterview as well as his in-court testimony.

Last, the defense o ffered expert testimon y by Dr. Kippenberger, a forensic toxicologist. His testimony was unrebutted by any government e xpert. He testified about memory formation—or the lack thereof—after the consumptio n of alcohol as
well as alcoholic blackouts. He also testified that persons un der the influence of alcohol are capable of making de cisions yet not remembering tho se decisions. Finally, he estimated , based on the limite d information availab le to him, that BC’s
blood alcohol content was in the .2 to .3 r ange. His testimony paints a picture of an individual similarly situated to BC, who has consumed a signifi cant amount of alcohol, having the ca pacity and ability to consent to the sexu al encounter at issue yet not remember the encounter. In other words, his unrebutted testimony is consistent with that of appellant, that BC was coherent and a w illing participant during the sexual activ ity with appellant.

Appellant and BC had a n unrebutted history o f getting together, consuming alcohol, and engaging in consensual sexual activity. The event s of 23 May 2015 tracked their relationship. That BC’s level of intoxication th at night was higher than appellant had previously observe d does not, witho ut more, estab lish BC was incapable of consenti ng. Perhaps BC could h ave provided contex t surrou nding her level of intoxication that night and what she did and did not r ecall, however, for reasons unclear from the record no such evidence was provided.

What we know is that neither Ms. Smith nor Mr. Saucedo could pr ovide context surrounding BC’s intoxication that night as compared to the other dozen or
so times she drank and had sex w ith the appellan t. We also kno w BC was not incapacitated when she rode away with the appellant, clearly de ciding to leave Ms. Smith and Mr. Saucedo to go home with the appell ant. We also k now that BC did not consume any additi onal alcohol after l eaving the club. Onc e at her residence, she entered her security code.

Affirming appellant’s conviction requires believing every incu lpatory statement made by appellant to Detective Ch ancellor while d isbelieving an y part of hisWHITE—ARMY 20170147

18 statement that was exculpatory. While I recognize that oftenti mes an appellant’s
statement will contai n both inculpatory and exculpatory portion s, especially in sexual assault cases—e.g., “yes, we did have sex but it was con sensual”—in appellant’s case, havi ng reviewed the videotaped interview, the record of trial, and having accounted for not having seen and heard the witnesses, I find the appellant
credible when he tells Detective Chancellor that: “I feel like I have done nothing wrong because again this was the normal situation besides the l evel of intoxication of [BC];” and, “She was coherent and conscious the entire time during the
intercourse.”

Sex with an impaired individual, regardles s of how impaired, d oes not end the analysis. Article 120(b)(3) “do es not proscribe sexual acts wi th impaired people, but rather with people incapable of consenting to the conduct a t issue because of their impairment—and even then, o nly when the in ability to cons ent is known, or reasonably should be known, to an accused.” United States v. Solis , 75 M.J. 759, 763 (N-M. Ct. Crim. App. 2016). An individual is incapable of consenting to sexual
conduct when he or she lacks “the cognitive ability to apprecia te the nature of the conduct in question, [ or] the mental and ph ysical ability to ma ke and to
communicate a decisio n regarding that conduc t to the other pers on United States v.

Pease , 74 M.J. 763, 770 (N-M. Ct. Cri m. App. 2015), a ff’d 75 M.J. 18 0 (C.A.A.F. 2016). See also United States v. Bailey , 77 M.J. 11, 13 ( C.A.A.F. 2017).

“Article 120(b)(3)(A), UCMJ, doe s not prohibit e ngaging in sex ual acts with a person who is drunk o r impaired by a lcohol. Put more plainly, mere impairment is
no more the standard under Article 120(b)(3 )(A), UCMJ, than the SAPR-perpetuated ‘one drink and you ca n’t consent’ axiom i s the standard.” United States v. Newlan

, No. 201400409, 2016 CCA LEXIS 540, *18-19 (N -M. Ct. Crim. App. 13 Sep. 2016).

That BC was impaired is without q uestion. Should she have bee n driving or operating a vehicle in her condition? Absol utely not. Am I co nvinced beyond a
reasonable doubt t hat she was in capable of conse nting? I am no t.

I find the government failed to establish, beyond a reasonable doubt, appellant’s guilt to t he specification of C harge I and thus wou ld set aside that conviction, dismiss the specification and reassess appellant’s sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: