United States v. Bailey

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Colby C. BAILEY, Seaman United States Coast Guard, Appellant No. 17-0265 Crim. App. No. 1428 Argued October 25, 2017—Decided November 29, 2017 Military Judges: Christine N. Cutter and Ian K. Thornill For Appellant: Lieutenant Commander Jason W. Roberts (argued). For Appellee: Stephen P. McCleary, Esq. (argued); Lieuten- ant Sharyl L. Pels (on brief). Judge OHLSON delivered the opinion of the Court, in which Chief Judge STUCKY, Judges RYAN and SPARKS, and Senior Judge ERDMANN, joined. _______________

Judge OHLSON delivered the opinion of the Court.

Contrary to his pleas, a general court-martial with en- listed representation convicted Appellant of three specifica- tions of sexual assault and one specification of abusive sexu- al contact in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).1 The panel sentenced Appellant to eighteen months of confinement, re- duction in rank to E-1, a dishonorable discharge, and forfei- ture of all pay and allowances. The convening authority ap- proved the sentence as adjudged. The United States Coast Guard Court of Criminal Appeals (CCA) then affirmed both the findings and sentence “as approved below.” However, in its description of the approved sentence, the CCA did not reference the forfeiture of all pay and allowances.

1 Appellant was also found guilty of assault consummated by battery in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2012), but the military judge dismissed the charge as “duplicitous.” United States v. Bailey, No. 17-0265/CG Opinion of the Court

We granted review of the following issues: I. Upon request by the defense counsel and us- ing a defense-drafted instruction, should the mili- tary judge have provided the members with an ex- planation of the term ‘incapable’? II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambigu- ous as to whether the affirmed sentence included forfeiture of all pay and allowances. United States v. Bailey, 76 M.J. 266 (C.A.A.F. 2017). We conclude that the military judge was not required to provide either the defense-requested instruction or a sua sponte instruction on “incapable of consenting.” We further conclude that the CCA’s affirmed sentence is ambiguous as to whether it includes forfeiture of all pay and allowances. We therefore affirm the findings but set aside the sentence and remand for clarification. I. Member Instructions A. Background Appellant was charged with three sexual assault specifi- cations, each of which stated that the victim “was incapable of consenting to the sexual act because she was impaired by an intoxicant, to wit: alcohol.” Appellant requested the mili- tary judge instruct the members on the definition of “inca- pable” as follows: “Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to phys- ically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions. The military judge denied the request and did not pro- vide any instruction defining “incapable.” However, the mili- tary judge did give the Military Judges’ Benchbook defini- tion of “consent.” See Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3, para. 3-45-14.d, NOTE 8 (2014) [hereinafter Military Judges’ Benchbook].

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B. Applicable Law Sexual assault requires in relevant part that the victim be “incapable of consenting to the sexual act” due to “im- pairment by any . . . intoxicant.” Article 120(b)(3)(A), UCMJ. In United States v. Pease, we approved the use of the follow- ing definition of “incapable of consenting”: “lack[ing] the cognitive ability to appreciate the sexual conduct in question or [lacking] the physical or mental ability to make [or] to communicate a decision about whether [the complainant] agreed to the conduct.” 75 M.J. 180, 185–86 (C.A.A.F. 2016) (first two alterations in original) (internal quotation marks omitted) (citation omitted).2 A military judge is required to instruct on the elements of a charged offense. Rule for Courts-Martial (R.C.M.) 920(e)(1); Article 51(c), UCMJ, 10 U.S.C. § 851(c) (2012). These instructions “should fairly and adequately cover the issues presented,” and should include “[s]uch other explana- tions, descriptions, or directions as may be necessary and which are properly requested by a party or which the mili- tary judge determines, sua sponte, should be given.” R.C.M. 920(a) Discussion; R.C.M. 920(e)(7). When deciding whether the military judge properly instructed a panel, this Court uses a de novo standard of review. United States v. Schroder, 65 M.J. 49, 54 (C.A.A.F. 2007). A counsel has the right to request tailored instructions, but a military judge has “substantial discretionary power” regarding whether to give those instructions. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); see also United States v. Carruthers, 64 M.J. 340, 345–46 (C.A.A.F. 2007) (reviewing military judge’s ruling on a defense- requested instruction for abuse of discretion). In reviewing whether a military judge erred by not providing a requested instruction in a specific case, this Court uses a three-pronged test. Carruthers, 64 M.J. at 346. Specifically, we must determine whether: (1) the requested

2 We note that our decision in Pease did not mandate the use of this instruction on “incapable of consenting.” Rather, our deci- sion merely held that the definition used by the United States Na- vy-Marine Corps Court of Criminal Appeals was proper. 75 M.J. at 186.

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instruction is correct; (2) the main instruction given does not substantially cover the requested material; and (3) the in- struction “is on such a vital point in the case that the failure to give it deprived [the accused] of a defense or seriously im- paired its effective presentation.” Id. (alteration in original) (internal quotation marks omitted) (quoting United States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003)). All three prongs must be satisfied for there to be error. United States v. Barnett, 71 M.J. 248, 253 (C.A.A.F. 2012). C. Analysis In deciding the initial issue presented we must examine two distinct questions. First, did the military judge abuse his discretion when he declined to give the defense- requested instruction regarding the definition of “incapa- ble”? And second, absent the defense-requested instruction, did the military judge err by failing to give any other in- struction that appropriately defined the term “incapable of consenting”? We answer both questions in the negative and conclude that there was no instructional error in this case. 1. Defense-Requested Instruction We begin by turning our attention to whether the de- fense-requested instruction meets the Carruthers three- pronged test for finding error. 64 M.J. at 346. As demon- strated below, we conclude that the instruction fails the very first prong of the test because it contains an inaccurate statement of law. Id. First, the defense-requested instruction is erroneous be- cause it uses language from a different section of Article 120, UCMJ, than the one used by the Government to charge Ap- pellant. Specifically, the defense-requested instruction uses language from Article 120(b)(2), UCMJ, by referring to the victim as being “asleep or unconscious.”3 However, the Gov- ernment charged Appellant under Article 120(b)(3), UCMJ,

3 Article 120(b)(2), UCMJ, refers to sexual assault as commit- ting “a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, uncon- scious, or otherwise unaware that the sexual act is occurring.” (Emphasis added.)

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which does not contain any language of being “asleep or un- conscious.”4 Second, the defense-requested language of “while asleep or unconscious” suggests that the complainant needed to be asleep or unconscious in order to be “incapable” of consent- ing. That suggestion is a misstatement of the law because a person can be awake and conscious and still be incapable of consenting. See Pease, 75 M.J. at 183, 186 (finding that the Navy-Marine Corps Court of Criminal Appeals applied the proper definition of “incapable of consenting” where that def- inition did not require the complainant to be asleep or un- conscious). Third, the proposed instruction’s use of the phrase “com- plete and total” and repeated use of the word “completely” are inconsistent with the language of Article 120, UCMJ, as well as with the definition approved by this Court in Pease. The defense’s use of this language in its requested instruc- tion erroneously implies that the complainant must not have been able to communicate at all.5 However, the instruction approved in Pease is more nuanced. (“[I]ncapable of consent- ing” means lacking “the physical or mental ability to make [or] to communicate a decision about whether [the com- plainant] agreed to the conduct.” Pease, 75 M.J. at 185 (in- ternal quotation marks omitted) (citation omitted).) Requir- ing that the complainant be completely unable to communicate is a higher burden than the statute requires and thus is an erroneous statement of the law. See Article 120(b)(3)(A), UCMJ.

4 Article 120(b)(3), UCMJ, refers to sexual assault as commit- ting “a sexual act upon another person when the other person is incapable of consenting to the sexual act due to . . . impairment by any drug, intoxicant, or other similar substance, and that condi- tion is known or reasonably should be known by the person.” 5 According to the defense-requested instruction, “incapable” means “complete and total mental impairment and incapacity” which rendered the alleged victim “completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.” (Emphasis added.)

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We therefore conclude that the defense-requested in- struction was an incorrect statement of the law and so fails the first prong of the Carruthers test. 64 M.J. at 346. Be- cause all three prongs must be satisfied in order for this Court to find error, we need not address the other two prongs. Barnett, 71 M.J. at 253. Accordingly, we conclude that the military judge did not err in refusing to give the de- fense-requested instruction. 2. General Instruction We now turn to whether the military judge was required to provide a sua sponte instruction on “incapable of consent- ing.” “[I]ncapable of consenting” is an element of the charged offense. Manual for Courts-Martial, United States pt. IV, pa- ra. 45.a.(b)(3) (2012 ed.). Therefore, if a definition of that phrase had been necessary for the panel members to under- stand it, then such an instruction would have been manda- tory. R.C.M. 920(e)(1). However, it is a well known principle that “[w]ords generally known and in universal use do not need judicial definition.” United States v. Nelson, 53 M.J. 319, 321 (C.A.A.F. 2000) (internal quotation marks omitted) (quoting United States v. Gibson, 17 C.M.R. 911, 935 (A.F.B.R. 1954)). Consistent with that principle, we conclude that the phrase “incapable of consenting” does not require additional definition and therefore instruction on this point was not required. “Incapable” is not a technical legal or scientific term. See United States v. Shepard, 1 C.M.A. 487, 492, 4 C.M.R. 79, 84 (1952) (“The words used in the instruction were not tech- nical and would be generally understood by members of the court-martial.”). The plain meaning of “incapable” is one that is generally—and correctly—understood as being una- ble to do something. At trial, the military judge gave an in- struction on the definition of “consent.” Therefore, the plain meaning of “incapable” combined with the definition of “con- sent” allowed the panel to understand the element “incapa- ble of consenting.” As such, the military judge was not re-

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quired to give an instruction on the definition of “incapable of consenting.”6 II. CCA Ambiguity In deciding the second issue presented, we begin by not- ing that this Court “may act only with respect to the find- ings and sentence” as affirmed by a Court of Criminal Ap- peals. Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2012). Further, “[t]he appropriate remedy for incomplete or ambig- uous rulings is a remand for clarification.” United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994); see also United States v. Richardson, 68 M.J. 480 (C.A.A.F. 2010) (summary disposi- tion). The sentence approved by the convening authority in- cluded forfeiture of all pay and allowances. In describing Appellant’s approved sentence the CCA omitted any refer- ence to the forfeiture of all pay and allowances, although it did state that Appellant’s sentence was affirmed “as ap- proved below.” We therefore conclude that the CCA opinion is ambiguous as to whether the court below affirmed a sen- tence that included forfeiture of all pay and allowances. Ac- cordingly, we remand this case to the CCA for clarification of this point. III. Conclusion We hold that the military judge did not abuse his discre- tion in declining to use the defense-requested instruction, and that he did not err in failing to give any other instruc- tion that defined the term “incapable.” We further hold that the CCA opinion in this case is ambiguous as to the affirmed sentence. Accordingly, we affirm the findings and set aside the sentence. The record of trial is returned to the Judge Advocate General of the Coast Guard for remand to the

6 After Appellant’s trial and this Court’s decision in Pease, the Military Judges’ Benchbook was updated to include a definition for “incapable of consenting.” Military Judges’ Benchbook ch. 3, para. 3-45-14 (2017). Nothing in this opinion should be read to mean that the Benchbook definition should not be given. See Unit- ed States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013) (“While . . . the Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law.”).

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United States Coast Guard Court of Criminal Appeals for clarification as to the affirmed sentence.