United States v. Pease

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Jacob L. PEASE, Information Systems Technician Se-

cond Class

United States Navy, Appellee

No. 16-0014

Crim. App. No. 201400165

Argued January 12, 2016—Decided March 17, 2016

Military Judge: J. K. Waits

For Appellant: Major Suzanne M. Dempsey, USMC (ar-

gued); Colonel Mark K. Jamison, USMC; Captain Matthew

M. Harris, USMC; Lieutenant Amy L. Freyermuth, JAGC,

USN, and Brian K. Keller, Esq. (on brief).

For Appellee: Eric S. Montalvo, Esq. (argued); Lieutenant

Christopher C. McMahon, JAGC, USN, and Carol A.

Thompson, Esq. (on brief).

Judge OHLSON delivered the opinion of the Court, in

which Chief Judge ERDMANN, Judges STUCKY and

RYAN, and Senior Judge SENTELLE, joined.

_______________

Judge OHLSON delivered the opinion of the Court. 1

A panel of officer and enlisted members sitting as a gen-

eral court-martial convicted Appellee of two specifications of

fraternization, one specification of abusive sexual contact,

and three specifications of sexual assault, in violation of Ar-

ticles 92 and 120, UCMJ, 10 U.S.C. §§ 892, 920 (2012). The

adjudged and approved sentence provided for a dishonorable

discharge and confinement for six years. The United States

Navy-Marine Corps Court of Criminal Appeals (CCA) af-

1 Senior Judge David B. Sentelle, of the United States Court of

Appeals for the District of Columbia Circuit, sat by designation,

pursuant to Article 142(f), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 942(f) (2012).

United States v. Pease, No. 16-0014/NA

Opinion of the Court

firmed the Article 92, UCMJ, fraternization convictions, but

reversed the Article 120, UCMJ, sexual assault and abusive

sexual contact convictions on the basis of factual insufficien-

cy and directed the case be returned for a rehearing on the

sentence. United States v. Pease, 74 M.J. 763, 771 (N-M. Ct.

Crim. App. 2015).

Following this decision, the Judge Advocate General of

the Navy (TJAG) certified the following two issues for our

review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2012):

I. The lower court judicially defined “incapable of

consenting” contrary to the instructions given to

the members and used this definition to find three

charges of sexual assault and one charge of abusive

sexual contact factually insufficient. In creating

this new legal definition not considered by the

factfinder and nowhere present in the record, did

the lower court consider matters outside the record

and outside its statutory authority in conducting its

factual sufficiency review?

II. The lower court judicially defined “incapable of

consenting” in a manner that limits prosecutions to

only two situations—“inability to appreciate” and

“inability to make and communicate” an agree-

ment. To prove the latter, the court further re-

quired proof that a victim be unable both to make

and to communicate a decision to engage in the

conduct at issue. Nothing in the statute reflects

Congressional intent to limit Article 120, UCMJ,

prosecutions in this manner. Did the lower court

err?

United States v. Pease, 75 M.J. 44, 44–45 (C.A.A.F. 2015).

We answer the certified issues in the negative by holding

that (1) the CCA was not bound by the military judge’s trial

instructions in conducting its Article 66(c), UCMJ, 10 U.S.C.

§ 866(c) (2012), factual sufficiency review, and (2) the CCA

applied the proper definition of “incapable of consenting” in

its factual sufficiency analysis despite an apparent scrive-

ner’s error in its definition of “incapable of consenting.” We

therefore affirm the CCA’s decision.

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Opinion of the Court

I. Background

Appellee was an information systems technician second

class (IT2) serving aboard the USS Mount Whitney. He had

supervisory responsibilities over two female sailors, IT2 BS

and Information Systems Technician Seaman (ITSN) SK, in

the radio division of the ship’s communications department.

In separate incidents involving port calls, Appellee engaged

in sexual activities with these two sailors after they had

consumed large amounts of alcohol, resulting in the Gov-

ernment charging Appellee with the three sexual assault

and one abusive sexual contact specifications at issue in this

appeal. 2

The panel convicted Appellee of the sexual assault and

sexual contact offenses after receiving the military judge’s

instructions on the elements for these offenses. Of relevance

to this case, the military judge instructed the members that

in order to find Appellee guilty, they had to be convinced be-

yond a reasonable doubt that Appellee committed the sexual

acts and sexual contact while ITSN SK and IT2 BS were “in-

capable of consenting to” the sexual activity “due to impair-

ment by an intoxicant, and that the condition was known or

reasonably should have been known by” Appellee. The mili-

tary judge explained the concept of “consent” as follows:

Evidence of consent to the sexual act is relevant as

to whether the prosecution has proven the elements

of the offense beyond a reasonable doubt. Stated

another way, evidence that the alleged victims con-

sented to any of the alleged sexual acts [or contact],

2 The Government charged Appellee with sexually assaulting

ITSN SK by penetrating her vulva with his penis while she “was

incapable of consenting to the sexual act due to impairment by an

intoxicant, and that condition was known or reasonably should

have been known by” Appellee. The Government also charged Ap-

pellee with (1) abusive sexual contact by “biting” IT2 BS’s breast

while she was “incapable of consenting to the sexual contact due to

impairment by an intoxicant, and that condition was known or

reasonably should have been known by” Appellee, and (2) sexual

assault by (a) penetrating IT2 BS’s anus with his penis and (b)

penetrating her vulva with his penis while IT2 BS “was incapable

of consenting to the sexual act due to impairment by an intoxi-

cant, and that condition was known or reasonably should have

been known by” Appellee.

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Opinion of the Court

either alone or in conjunction with the other evi-

dence in this case, may cause a reasonable doubt as

to whether the accused knew or reasonably should

have known that the alleged victims were incapable

of consenting to the sexual acts due to impairment

by an intoxicant.

“Consent” means a freely given agreement to the

conduct at issue by a competent person….

Lack of consent may be inferred based on the cir-

cumstances. All the surrounding circumstances are

to be considered in determining whether a person

gave consent, or whether a person did not resist or

ceased to resist only because of another person’s ac-

tions. A sleeping, unconscious, or incompetent per-

son cannot consent to a sexual act.

The military judge did not instruct the members about the

meaning of “incapable of consenting.”

During panel deliberations, the members requested

guidance on the meaning of the word “competent” by asking,

“Is there a legal definition of a competent person?” Appellee

proposed that the military judge use the definition of “com-

petent” from Black’s Law Dictionary—“a basic [or] minimal

ability to do something.” The Government took the position

that the members should “figure it out” by applying the

plain meaning of the word. The military judge followed the

Government’s “figure it out” approach and instructed the

members as follows:

Members, the counsel and I have discussed it.

There is no definition within this statute. Okay?

We can look to other sources. We can look to other

statutes. We can look to legal dictionaries, but

those may provide definitions that are inapposite to

the statute in this case, so when a statute does not

give a definition then it’s up to the reader to just

employ the plain and ordinary meaning of the

words. Okay? So whatever it means to you based on

your experience, understanding and vocabulary

lessons from elementary school, whatever it may

be, the court’s not able to give you a more precise

legal definition under this statute because there is

not one. Okay?

So I just admonish you to go back and read the el-

ements of the offenses. Read the definitions and the

other instructions that I provided you for all of the

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Opinion of the Court

Charges and Specifications and you’re going to ---

nobody said this was going to be easy. You’re going

to have to make a determination based on the law

as I have instructed you. Okay?

After receiving these instructions, the members returned

findings of guilty for the sexual assault and abusive sexual

contact specifications.

At the CCA, Appellee challenged the factual sufficiency

of, inter alia, his sexual assault and abusive sexual assault

convictions. Before evaluating for factual sufficiency, the

CCA defined four terms from Article 120, UCMJ:

(1) “[A] ‘competent’ person is simply a person who

possesses the physical and mental ability to

consent.”

(2) “An ‘incompetent’ person is a person who lacks

either the mental or physical ability to consent

due to a cause enumerated in the statute.”

(3) “To be able to freely give an agreement, a per-

son must first possess the cognitive ability to

appreciate the nature of the conduct in ques-

tion, then possess the mental and physical abil-

ity to make and to communicate a decision re-

garding that conduct to the other person.”

(4) A person is “incapable of consenting” when she

“lack[s] the cognitive ability to appreciate the

sexual conduct in question or the physical or

mental ability to make and to communicate a

decision about whether [she] agree[s] to the

conduct.”

Pease, 74 M.J. at 770. Examining the evidence presented at

trial in light of these definitions, the CCA found the evidence

factually insufficient to support the sexual assault and abu-

sive sexual contact convictions. The CCA reached this con-

clusion based on two grounds: the Government failed to

prove beyond a reasonable doubt that ITSN SK and IT2 BS

were incapable of consenting, and the Government failed to

prove beyond a reasonable doubt that Appellee knew or rea-

sonably should have known that they were incapable of con-

senting. 3 Id. at 770–71. As a result, the CCA set aside the

3 We preliminarily address the argument raised in Ap-

pellee’s brief that the law of the case doctrine requires us to

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Opinion of the Court

findings of guilty for the Article 120, UCMJ, offenses and

dismissed the Article 120, UCMJ, specifications. Pease,

74 M.J. at 771. TJAG then certified the two questions cited

above, which we now consider. In doing so, we conduct a de

novo review of the issues presented. United States v. Paul,

73 M.J. 274, 277 (C.A.A.F. 2014) (“This Court reviews ques-

tions of law de novo.”).

II. Discussion

A. Certified Issue I

The first certified issue requires us to determine wheth-

er, in the course of conducting its Article 66(c), UCMJ, fac-

tual sufficiency review, the CCA had the authority to define

statutory terms that were not defined at trial. The Govern-

ment argues that it was improper for the CCA to consider

definitions of legal terms that were not instructed upon by

the military judge or considered by the members. Specifical-

ly, the Government claims that the CCA’s actions constitut-

ed consideration of both extra-record matters and a legal

theory not presented to the panel. We reject the Govern-

ment’s arguments.

leave the CCA’s decision undisturbed. Specifically, Appellee

asserts that the law of the case doctrine applies because the

certified issues submitted by TJAG only address one, rather

than both, of the grounds upon which the CCA based its fac-

tual insufficiency findings. We have long held that we will

not review certified issues when “[p]ractically speaking, any

action which we might take with respect to the certified is-

sues would not materially alter the situation presented with

respect either to the accused or the Government.” United

States v. Gilley, 14 C.M.A. 226, 226–27, 34 C.M.R. 6, 6–7

(1963); see also United States v. Morita, 74 M.J. 116, 123 n.7

(C.A.A.F. 2015). However, that is not the situation presented

here. The question raised in the second certified issue about

whether the CCA properly defined the phrase “incapable of

consenting” is fundamental to both of the CCA’s factual in-

sufficiency findings. See Pease, 74 M.J. at 770. We therefore

conclude that Appellee’s argument concerning the law of the

case doctrine is without merit.

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Opinion of the Court

Article 66(c), UCMJ, requires the Courts of Criminal Ap-

peals to conduct a factual sufficiency review by determining

whether the evidence at trial proves an appellant’s guilt be-

yond a reasonable doubt. United States v. Washington,

57 M.J. 394, 399 (C.A.A.F. 2002); United States v. Turner,

25 M.J. 324, 324–25 (C.M.A. 1987). When conducting this

review, the Courts of Criminal Appeals are “limited to the

evidence presented at trial,” United States v. Beatty, 64 M.J.

456, 458 (C.A.A.F. 2007), but their “application of the law to

the facts must … be based on a correct view of the law.”

United States v. Leak, 61 M.J. 234, 242 (C.A.A.F. 2005) (em-

phasis added) (citation omitted) (internal quotation marks

omitted).

In light of this responsibility, the CCA first needed to de-

termine the correct, applicable law in this case in order to

properly conduct its factual sufficiency analysis. The fact

that the CCA found it necessary to consider legal definitions

not expounded upon at trial does not constitute considera-

tion of matters outside the record or consideration of a new

legal theory, but instead represents a permissible act within

the CCA’s Article 66(c), UCMJ, authority. We therefore an-

swer the first certified issue in the negative.

B. Certified Issue II

The second certified issue requires us to determine

whether the CCA properly defined the statutory term “inca-

pable of consenting.” In the course of doing so, we note that

we interpret words and phrases used in the UCMJ by exam-

ining the ordinary meaning of the language, the context in

which the language is used, and the broader statutory con-

text. See United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F.

2015); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997).

The CCA developed its definition of “incapable of con-

senting” by determining the meaning of three Article 120,

UCMJ, terms—“competent,” “incompetent,” and “freely giv-

en agreement.” Pease, 74 M.J. at 770. The Government chal-

lenges the CCA’s definitions of all four terms. Therefore, we

will examine each one in turn.

First, the CCA defined a “competent person” as “a person

who possesses the physical and mental ability to consent.”

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Opinion of the Court

Id. This definition properly incorporates three statutory re-

quirements: (1) the person must be “competent” to consent,

Article 120(g)(8)(A), UCMJ; (2) the person cannot consent if

she is asleep or unconscious, Article 120(g)(8)(B), UCMJ;

and (3) the person is incapable of consenting if she is im-

paired by a drug, intoxicant, or other substance, or if she is

suffering from a mental disease or defect or physical disabil-

ity, Article 120(b)(3)(A), (B), UCMJ. We therefore agree with

the CCA’s definition of a “competent person.”

Second, the CCA defined an “incompetent” person as one

“who lacks either the mental or physical ability to consent

due to a cause enumerated in the statute.” Pease, 74 M.J. at

770. We conclude that the CCA properly defined this term. 4

Third, the CCA defined a “freely given agreement” as oc-

curring when a person “first possess[es] the cognitive ability

to appreciate the nature of the conduct in question, then

posess[es] the mental and physical ability to make and to

communicate[ 5] a decision regarding that conduct to the

other person.” Id. We note that the statutory phrase “freely

given agreement” reflects the voluntariness aspect of con-

sent. However, the CCA’s definition of that phrase may be

viewed as not accounting for those situations where a victim

has the ability to appreciate the conduct, and the mental

and physical ability to communicate the decision, but does

not articulate non-consent out of fear or due to some other

external compulsion counteracting voluntariness. Neverthe-

less, we conclude that any imprecision does not constitute

reversible error because, as demonstrated immediately be-

low, the CCA’s definition of “incapable of consenting,” which

ultimately is the heart of the matter before us, adequately

addresses the concept of voluntariness.

Fourth and finally, using the three definitions developed

above, the CCA defined “incapable of consenting” as

4 See Random House Webster’s Unabridged Dictionary 967 (2d

ed. 2001) (defining “incompetent” as “not competent”).

5 The CCA’s definitions of “freely given agreement” and “inca-

pable of consenting” both include the phrase “to make and to

communicate a decision.” As we explain below, we conclude that

the CCA’s definitions should refer to the ability to make or to

communicate a decision.

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“lack[ing] the cognitive ability to appreciate the sexual con-

duct in question or [lacking] the physical or mental ability to

make and to communicate a decision about whether they

agreed to the conduct.” Id. As is evident, the CCA correctly

defined “incapable” as meaning the victim “lacked the ...

ability to.” 6 In regard to its definition of “consent,” the CCA

essentially adopted the meaning of that term as provided

under Article 120, UCMJ: “[C]onsent means a freely given

agreement to the conduct at issue by a competent person.”

Article 120(g)(8)(A), UCMJ. Thus, we conclude that the

CCA’s inclusion of the phrase “whether they agreed to the

conduct” adequately incorporates into the definition of “in-

capable of consenting” the voluntariness component of con-

sent, and we further conclude that the definition is correct

with the exception of an apparent scrivener’s error ad-

dressed below.

As evidenced by the second certified question, the Gov-

ernment argues that there are two problems with the CCA’s

“incapable of consenting” definition. First, the Government

asserts that this definition improperly limits prosecutions to

only those situations where a putative victim had “an inabil-

ity to appreciate the conduct” or had an “inability to make

and communicate” an agreement. Second, the Government

avers that the CCA’s definition increases the Government’s

burden of proof by requiring the victim to be unable both to

make a decision and to communicate a decision. We do not

find either of these arguments dispositive of the issues be-

fore us.

We first note that the CCA’s definition of “incapable of

consenting” was properly based on the ordinary meaning of

the phrase, the context in which it was used, and the broad-

er statutory context. See Schloff, 74 M.J. at 314. Moreover,

we find no basis to conclude that the CCA’s definition was

otherwise incorrect, unnecessarily restrictive, or incon-

sistent with statutory intent. Therefore, the CCA’s definition

of this phrase withstands legal scrutiny, and arguments

6 See Merriam-Webster Unabridged Online Dictionary,

http://unabridged.merriam-webster.com/unabridged/incapable

(last visited Mar. 8, 2016) (defining “incapable” as “lacking capaci-

ty, ability, or qualification for the purpose or end in view”).

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Opinion of the Court

about whether the definition is broad enough for the Gov-

ernment’s prosecutorial purposes are unavailing.

In regard to the Government’s second argument, we

agree that the CCA’s definition of “incapable of consenting”

should have stated that a victim must have the ability “to

make or to communicate a decision” rather than “to make

and to communicate a decision.” Pease, 74 M.J. at 770 (em-

phasis added). However, this apparent scrivener’s error did

not constitute reversible error in the instant case because

the CCA’s factual sufficiency analysis for the offenses involv-

ing IT2 BS and ITSN SK actually applied the “to make or to

communicate” standard. For example, the CCA stated it was

not persuaded “beyond a reasonable doubt that somewhere

in between [ITSN SK kissing Appellee and supporting her

own weight while engaging in sexual intercourse with Ap-

pellee] she had become manifestly unaware of what was

happening or unable to make or to communicate decisions.”

Id. at 771 (emphasis added). The CCA also indicated that it

applied this “to make or to communicate” standard when

analyzing factual sufficiency for the offenses involving IT2

BS because immediately after the ITSN SK analysis, the

CCA found “[s]imilar concerns apply to IT2 BS.” Id. We

therefore conclude that although the Government is correct

that the “to make or to communicate” standard is the proper

one, the Government is incorrect in arguing that the CCA

actually used the “to make and to communicate” standard.

Therefore, no reversible error resulted in the instant case.

For the reasons cited above, we answer the second certi-

fied issue in the negative.

III. Decision

We conclude that the CCA acted within its Article

66(c), UCMJ, authority to define statutory terms before con-

ducting its factual sufficiency review, and that in the course

of conducting its factual sufficiency analysis, the CCA ap-

plied the proper definition of “incapable of consenting.” The

decision of the United States Navy-Marine Corps Court of

Criminal Appeals is therefore affirmed.

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