United States v. Ginn

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class MATTHEW T. GINN
United States Air Force

ACM 38551

17 August 2015

Sentence adjudged 28 September 2013 by GCM convened at Laughlin
Air Force Base, Texas. Military Judge: Donald R. Eller, Jr.

Approved Sentence: Dishonorable discharge, confinement for 6 months,
total forfeiture of pay and allowances, and reduction to E-1.

Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

Appellate Counsel for the United States: Major Roberto Ramirez and
Gerald R. Bruce, Esquire.

Before

ALLRED, HECKER, and TELLER
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

TELLER, Judge:

The appellant was convicted by a panel of officer members, contrary to his plea, of
sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920. He was also
convicted, in accordance with his plea, of dereliction of duty by providing alcohol to a
minor in violation of Article 92, UCMJ, 10 U.S.C. § 892.1 The court sentenced him to a
dishonorable discharge, 6 months confinement, total forfeitures, and reduction to E-1.
The sentence was approved as adjudged.

1
The appellant was found not guilty of one specification alleging assault.
 The appellant argues that: (1) the military judge erred by not instructing the
members on the definition of the term “impairment”; (2) the military judge erred by not
providing the members, in response to their specific request, a definition of the term
“competent”; (3) Article 120, UCMJ, is unconstitutionally vague on its face and as
applied to him; (4) the evidence was legally and factually insufficient to sustain the
conviction under Article 120, UCMJ; (5) the victim impact statement provided to the
convening authority contained impermissible matters; and (6) he is entitled to relief for
unreasonable delay between the close of trial and the convening authority’s action.
Finding no error that materially prejudices a substantial right of the appellant, we affirm
the findings and sentence.

Background

The charges in this case arose after the appellant, the victim, and a third Airman
agreed to meet after work to have drinks in the appellant’s dormitory suite. While the
testimony about events that night is in some respects contradictory and incomplete, we
find the following facts under our authority pursuant to Article 66, UCMJ,
10 U.S.C. § 866.

The victim, an air traffic control apprentice who had only recently arrived at the
base, worked in the same unit and on the same shift as the appellant. Although they had
gone out together on a few occasions, usually with other Airmen, they were not in a
dating relationship. At the time of this incident, the victim was 19 years old.

On Friday, 17 August 2012, the appellant, a friend, and the victim met up after
work, intending to get some liquor and drink it together. The victim, who expressed her
preference for a particular type of tequila, agreed to pay, but the appellant actually bought
the liquor because she was underage. The victim paid him back shortly thereafter from
cash she received after purchasing limes to accompany the shots of tequila. Although the
evidence varied substantially regarding how much tequila the victim drank, we find that
she had eight to ten shots in less than two hours. Not surprisingly, the victim vomited
sometime within an hour after drinking the last shot.

The victim does not recall much of the night after she drank the tequila. She has
an indistinct memory of being in the bathtub of the appellant’s bathroom with a white
male who looked like the appellant leaning over her. Her only other memory of the night
was a brief recollection of lying on the couch in the living room of the appellant’s
dormitory suite and noticing that she was wearing different clothes than she had on
earlier in the evening. She later woke up on that couch and found that the appellant and
his friend were asleep on the couch as well. All three were fully clothed. The victim
went back to her own dormitory room and noticed the sun was just coming up. She
noticed pain in her vagina as if she had uncomfortable sex as well as bruises on her arm
and knee. While changing clothes, she also discovered ten to fifteen quarter-sized bruises
on her chest that she described as hickeys.

2 ACM 38551
 The appellant’s friend, whose memory of the night was more complete, testified
the victim became largely unresponsive after drinking the tequila, first vomiting on the
bathroom floor, and later passing out in the appellant’s bedroom. He first observed the
victim stumble after drinking multiple shots of tequila. The friend then went outside to
talk to another individual who was nearby. About 35 to 40 minutes later, he returned and
the appellant told him the victim had vomited. The friend saw vomit on the bathroom
floor, up the walls, and in the doorway.2 As he was walking in, the appellant was
walking out, complaining about the mess. The friend found the victim in the bathtub,
wearing a different shirt than she had been wearing earlier. The shirt had vomit on it and
the water was running at her feet.

The friend, in an effort to calm the appellant, took charge of cleaning up the mess.
He tried talking to the victim, but she was incoherent and had difficulty verbalizing
complete thoughts. She would alternately open and close her eyes, lapsing in and out of
awareness. Her clothes were wet from the water in the bathtub, so after cleaning the
vomit, the friend tried to change her into some shorts and a t-shirt provided by the
appellant. He had to lift her from the bathtub and guide her as she stumbled into the
bedroom and onto the bed. Although she was unable to remain upright by herself, she
was able to help the friend in changing her shirt and then her pants. As the friend left to
get the appellant’s help in washing the victim’s soiled clothes, the victim remained on the
bed talking incoherently about wanting to go back into the bathtub. After the friend
returned with the appellant, the victim was leaning partly on and partly off the bed, so the
friend eased her onto the floor. He left her there with the thought that she could just
“sleep it off.”

Shortly after he left, the friend discussed the victim’s condition with another
Airman who became concerned, believing that it was better for everyone if the victim
were taken back to her own room. The two returned to the appellant’s suite and tried to
convince the appellant to return the victim to her room. The appellant, after some delay,
came to the door, but rebuffed their suggestions without letting them in the room. During
this time, the victim’s slurred, drunken speech could be heard from inside the room. The
appellant simply kept reiterating that the two should just trust him. The two other
Airmen eventually gave up and left. The friend didn’t see the appellant or the victim
again until early the next morning. Although phone records indicate the friend and the
appellant placed several phone calls, exchanged text messages, and had at least one six-
minute phone conversation between 0233 and 0514, the friend could not recall the
content of any of those exchanges.

The appellant testified that he and the victim engaged in consensual sexual activity
when she was no longer intoxicated, but his version of events was unconvincing. He

2
The appellant’s suite was comprised of two rooms that were originally designed as separate rooms connected by a
shared bathroom. Accordingly, the bathroom also served as a hallway of sorts connecting the appellant’s two
rooms.

3 ACM 38551
claimed she only drank five shots, after which she stopped, saying the shots were
disgusting. That part of his testimony was in conflict with his own earlier testimony that
the victim had chosen the tequila and that it was “her favorite.” After drinking tequila for
about 30 minutes, the victim got up to go to the bathroom, stumbled, and then vomited on
the floor. The appellant let his friend clean the bathroom and help the victim change
clothes. He then saw the victim sleeping on top of a pile of laundry in his bedroom. The
appellant next recalls being awakened on his couch around 0500 when the two Airmen
came by in order to return the victim to her room.3 His account of that discussion was
that he dismissed the idea of moving her because no one knew where she was staying.
After going back to sleep on his couch, the appellant asserts he was awakened when he
heard a noise and then heard the victim call his name from the bedroom. At first he
testified that this happened a few hours after the other Airmen came by but he then
clarified that he wasn’t sure how long he slept. According to him, he left the couch to go
to the bathroom and ran into the victim near the bathtub. He testified that she no longer
seemed intoxicated, but rather like she had just woken up. He explained that her quick
recovery did not surprise him because “in [his] experience . . . when you’re drinking a lot
or at least a lot of the time when you throw up you generally just feel like really good
right afterwards like you’re ready to go.”

The appellant asserted that, as the two stood in the bathroom, she began
apologizing and then gave him “a peck on the lips.” He claimed this escalated to mutual
foreplay, during which he may have given her some hickeys on her chest. He removed
his shorts and her shirt and touched the outside of her vagina. He testified that he did not
“specifically remember” placing his finger inside her vagina, but it was possible he did.
According to him, they settled into the bathtub, with him on the bottom and her on top,
and she began guiding his penis toward her vagina, at which point he stopped because he
did not have a condom. He stated that the entire interlude lasted two to three minutes.
According to him, “[A]fter that we both got up and went out of the bathtub, put our
clothes on and then went to my couch,” where they talked until they fell asleep. With
regard to his friend’s recollection that the appellant had admitted “fingering” the victim,
he testified that the friend misinterpreted him when he said they had “fooled around.”

The victim did not immediately report the incident. Although she thought she may
have been assaulted, she testified that she pushed that unpleasant thought out of her mind
and concluded that she must have participated willingly without being able to remember
it. Although she made two trips to Austin with the appellant and his friend shortly after
the incident, they began to have disagreements, and she distanced herself from the
appellant. Rumors also began to spread that the two had engaged in some kind of sexual
activity, causing at least one Airman to make a joke in front of the victim about her

3
During cross-examination, the appellant testified that he sent his friend a text message saying, “I’m sorry. Come
over man,” at 0514. That time was also reflected in phone records. The apparent timing inconsistency in the
appellant’s account of events between the 0500 visit from the two Airmen, his return to sleep on the couch, the
interlude in the bathroom, and the 0514 text message was never clarified.

4 ACM 38551
perceived promiscuity. The victim confided in a friend, who happened to be a medic,
about the incident and the rumors. The medic, who had a duty to report such incidents to
the sexual assault response coordinator, convinced the victim to report it, which she later
did.

Instruction Defining “Impairment”

For this course of conduct, the appellant was charged with sexual assault for
penetrating the victim’s vulva with his finger while she was incapable of consenting to
the sexual act due to impairment by alcohol, a condition that was known or reasonably
should have been known by the appellant. Article 120(b)(3)(A), UCMJ. Accordingly,
the military judge instructed the members:

In the Specification of the Charge, the accused is charged
with the offense of sexual assault, in violation of Article 120,
U.C.M.J. In order to find the accused guilty of this offense,
you must be convinced by legal and competent evidence
beyond reasonable doubt:

(1) That at or near Laughlin Air Force Base, Texas, between
on or about 17 August 2012 and on or about 18 August 2012,
the accused committed a sexual act upon [the victim], to wit:
penetrating the vulva of [the victim] with his finger;

(2) That the accused did so when [the victim] was incapable
of consenting to the sexual act due to impairment by an
intoxicant, to wit: alcohol, and that condition was known or
reasonably should have been known by the accused.

The military judge went on to define sexual act, vulva, and consent, but no other
terms. In advising on consent, the military judge instructed the panel consistent with
Article 120(g)(8) that:

“Consent” means a freely given agreement to the conduct at
issue by a competent person. . . . Lack of consent may be
inferred based on the circumstances. 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 actions. A
sleeping, unconscious, or incompetent person cannot consent
to a sexual act.

The appellant now argues the military judge erred by not defining the term
“impairment” in the findings instructions to the panel. While discussing the draft

5 ACM 38551
findings instructions, the trial counsel asked the military judge if he was going to provide
a definition for “impairment by an intoxicant.” Although the military judge responded
that he would consider any draft instruction sent to him, the issue was never raised again
on the record. The trial defense counsel did not request such an instruction, nor did
counsel object to its absence after being provided with the final draft of the findings
instructions.

The parties disagree on the standard of review that applies. Generally speaking,
“[t]he question of whether the members were properly instructed is a question of law and
thus review is de novo.” United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). Rule
for Courts-Martial (R.C.M.) 920(f) provides: “Failure to object to an instruction or to
omission of an instruction before the members close to deliberate constitutes waiver of
the objection in the absence of plain error.”4 A military judge has a sua sponte duty,
however, to provide the required instructions under R.C.M. 920(e)(1)–(6), such as those
on reasonable doubt, the elements of the offenses, and affirmative defenses; the forfeiture
rule in R.C.M. 920(f) does not apply to those required instructions. See United States v.
Davis, 53 M.J. 202, 205 (C.A.A.F. 2000). The appellant characterizes the victim’s
impairment as an element of the offense and accordingly argues the military judge had a
duty to provide a definition. The government argues conversely that definitions of terms
found within an element are not part of the mandatory instructions, and we must apply a
plain error analysis due to the lack of defense objection to an omitted definition.

In support of the contention that impairment constitutes an element of the offense,
the appellant points to case law from our fellow Courts of Criminal Appeals. He argues
that in United States v. Medina, 68 M.J. 587 (N.M. Ct. Crim. App. 2009), and United
States v. Johanson, 71 M.J. 688 (C.G. Ct. Crim. App. 2012), our fellow courts treated the
definition of a “substantially incapacitated” victim as part of an element of the
predecessor offense of aggravated sexual assault. He suggests this required the military
judge in this case to sua sponte define “impairment” as part of an element of the charge
under the current version of the statute.

We find this argument inapposite to this case as the determination of an offense’s
elements is inextricably tied to the language of the statute itself. “Determinations as to
what constitutes a federal crime, and the delineation of the elements of such criminal
offenses—including those found in the UCMJ—are entrusted to Congress.” United
States v. Jones, 68 M.J. 465, 471 (C.A.A.F. 2010). Congress superseded the prior version
of Article 120, UCMJ, in the National Defense Authorization Act for Fiscal Year 2012.
See Punitive Articles Applicable to Sexual Offenses Committed During the Period 1
October 2007 through 27 June 2012, Manual for Courts-Martial, United States (MCM),
A28-1 (2012 ed.). In revising the language of the offense, Congress changed the nature

4
Although Rule for Courts-Martial 920(f) states that the failure to object constitutes waiver, subsequent decisions
have clarified this is actually forfeiture. See United States v. Sousa, 72 M.J. 643, 651–52 (A.F. Ct. Crim. App.
2013).

6 ACM 38551
of the offense from engaging in a sexual act with a victim who is substantially
incapacitated to an offense framed in terms of whether the victim was “incapable of
consenting” due to impairment or disability. Article 120(b)(3), UCMJ. In light of this,
we find that the military judge’s formulation of and instruction on the elements of the
offense and his instruction on consent was adequate to meet his obligation under R.C.M.
920(e)(1), as discussed further below.

The question of whether a word or phrase included within an element requires
judicial definition is separate from whether the military judge properly provided
instruction on the elements of the offense. See United States v. Glover, 50 M.J. 476, 478
(C.A.A.F. 1999). We test the absence of a specific definition of “impairment” using the
plain error test made applicable by R.C.M. 920(f). Under plain error review, the
appellant has the burden of showing there was error, that the error was plain or obvious,
and that the error materially prejudiced a substantial right of the appellant. United States
v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011).

We find that the military judge’s failure to define impairment under these
circumstances was not error, much less plain error. “Words 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) (quoting United States v. Gibson, 17 C.M.R. 911, 935 (C.M.A. 1954))
(internal quotation marks omitted); see also United States v. Payne, 73 M.J. 19, 26 n.10
(C.A.A.F. 2014). In the context at issue here (“incapable of consenting to the sexual act
due to impairment by an intoxicant”), the word “impairment” is used in the normal sense
of the word in common usage and requires no judicial definition, especially when linked
with the statutory definition of consent provided by Congress, as discussed further
below.5

Instruction Defining “Competent”

In instructing the panel, the military judge told the panel, “‘Consent’ means a
freely given agreement to the conduct at issue by a competent person.” (Emphasis
added). After closing for deliberations, the members passed a written question to the
military judge. The question read, “What is the legal definition of competent in terms of
this case?” The following colloquy between the military judge and counsel ensued:

[Military Judge]: My review of the [MCM] and the
Benchbook6 contended [sic] there is no particular legal
definition for the word “competent.” It’s used in a number of
places in the instructions interestingly, including that they
must be convinced by legal and competent evidence. I’m

5
We note that the appellant has not stated what definition of “impairment” the military judge should have provided
nor how the failure to provide the panel with that definition materially prejudiced his substantial rights.
6
Department of the Army Pamphlet 27-9, Military Judges’ Benchbook (1 January 2010).

7 ACM 38551
 certain that that’s not their concern. I would guess that it has
to do with the evidence of consent and the competent
person’s response. My intention is to tell them that there is
no legal definition; that they should apply their common
understanding of the word “competent” as it’s used in their
day to day life; and then refer them back to the instructions
which may be useful in making a determination or applying
the law to the facts of this case as they develop them. Is that
sufficient for the parties?

[Trial Counsel]: Yes, sir.

[Defense Counsel]: Yes, sir.

The military judge subsequently instructed the panel,

[T]here is no particular legal definition for the word
“competent.” We oftentimes expect people to just apply
common usage of words. You develop the facts, you look at
the instructions that I’ve given you defining the law and you
make a determination whether under the facts these things
apply. So there is no particular legal definition that I can
provide for you to give you a better vector on what that word
means. That may not be satisfactory; but that is the state of
the law at this stage.

The appellant now contends the military judge erred by failing to define what a
“competent” person is for purposes of consent when specifically asked to do so by the
panel. We disagree.

As discussed above, R.C.M. 920(f) provides that, absent plain error, failure to
object to an instruction constitutes forfeiture of any objection. The appellant must show
that there was error, that the error was plain or obvious, and that the error materially
prejudiced a substantial right. Girouard, 70 M.J. at 11.

“The military judge has an independent duty to determine and [provide]
appropriate instructions to the panel.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008) (citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990). While
military judges may craft ad hoc instructions that are not inconsistent with the law, they
have “substantial discretionary power in deciding on the instructions to give.” United
States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (quoting United States v. Damatta-
Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (internal quotation marks omitted).

8 ACM 38551
 As the military judge indicated, “competent” in this context is not expressly
defined in the UCMJ, the MCM, or the Benchbook relative to this offense. Under these
circumstances, we find that the military judge’s decision whether or not to craft a
particularized definition in the absence of either statutory or case law guidance was a
matter within his discretion. But see United States v. Long, 73 M.J. 541, 545 (Army Ct.
Crim. App. 2014) (holding that “competent person” is a legal term of art that is
fundamental to a panel’s decision under the predecessor statute and warrants proper
instruction by the military judge and then finding its definition is found within the
statutory definition of consent).7

The policy reasons behind the forfeiture rule in R.C.M. 920(f) are at their zenith in
cases where an appellant, for the first time on appeal, suggests that the military judge
erred in failing to define a term for which no ready definition is provided in the law. As
our superior court has previously held,

If defense counsel believed that further amplification of the
law by the military judge was warranted, the time to request
such modifications was at trial, when the military judge could
have tailored any requested wording to the law and the
evidence. Counsel was actively engaged in the consideration
of the instruction at trial. Under these circumstances, there
was no plain error.

United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003).

We find on the facts of this case that the military judge’s instructions to the
members to “just apply [the] common usage” of the word “competent” was not plain
error when considered within the context of all the instructions provided to them. The
government was required to prove beyond a reasonable doubt that (1) the appellant
engaged in sexual activity with the victim (2) when he knew or should have known she
was incapable of consenting due to her level of alcohol impairment. When the panel was
instructed that consent in this context means a “freely given agreement,” the members
were effectively charged with determining whether the victim had, at the time of the

7
The Army Court of Criminal Appeals’ opinion in United States v. Long was issued after the end of the appellant’s
trial. Our sister court’s holding in Long will not resolve the issue presented in this case, which involves a different
statute. United States v. Long, 73 M.J. 541 (Army Ct. Crim. App. 2014). In Long, the court held that the same
predecessor Article 120, UCMJ, 10 U.S.C. § 920, statute that included the “competent person” language within the
definition of consent also included a definition of “competent person.” Id. at 545. That definition stated a variety of
conditions under which a person could not consent (and thus was not competent to consent), including, inter alia,
tender age and lack of capacity to appraise the nature of the sexual conduct at issue. Article 120(t)(14)(A)–(B),
UCMJ. For the statute at issue in the instant case, however, the comparable definition of consent now states, “The
term ‘consent’ means a freely given agreement to the conduct at issue by a competent person. . . . A sleeping,
unconscious, or incompetent person cannot consent.” Article 120(g)(8)(A)–(B), UCMJ (emphasis added). This
circular language therefore does not assist in defining the word “competent” short of a sleeping or unconscious
victim.

9 ACM 38551
sexual activity, freely agreed to engage in it. The victim could not “freely” agree to an
activity unless she was capable of agreeing, or, in other words, unless she was
“competent” to agree. A further definition of the word “competent” was unnecessary,
and the lack of such a further definition did not materially prejudice a substantial right of
the appellant.8

Factual and Legal Sufficiency

We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for factual sufficiency is
whether, after weighing the evidence . . . and making allowances for not having . . .
observed the witnesses,” we ourselves are “convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)) (internal quotation marks
omitted). “The test for legal sufficiency of the evidence is ‘whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324). Applying
these standards to the record in this case, we find the evidence legally and factually
sufficient to support the findings of guilt.

As the military judge instructed, the offense charged has two elements: (1) that
the accused committed a sexual act upon the victim, specifically, penetrating her vulva
with his finger; and (2) that he did so when the victim was incapable of consenting to the
sexual act due to impairment by alcohol, and that he knew or reasonably should have
known of that condition.

8
The appellant has not stated what definition of “competent” the military judge should have provided nor how the
failure to provide the panel with that definition materially prejudiced his substantial rights. We note that our sister
court recently published a decision that states the following:

Article 120 defines “consent” as “a freely given agreement to the conduct at
issue by a competent person” and goes on to state that a “sleeping, unconscious,
or incompetent person cannot consent.” Art. 120(g)(8), UCMJ. Reading these
provisions together, to prove a violation of Article 120(b) or (d), the
Government must prove that a listed condition rendered the complainant
incapable of entering a freely given agreement. Here, the terms “competent”
and “incompetent” in the definitions section merely refer back to the punitive
language regarding those incapable of consenting; it adds no further punitive
exposure. Thus, in this context, a “competent” person is simply a person who
possesses the physical and mental ability to consent. An “incompetent” person
is a person who lacks either the mental or physical ability to consent due to a
cause enumerated in the statute. To be able to freely give an agreement, a
person must first possess the cognitive ability to appreciate the nature of the
conduct in question, then possess the mental and physical ability to make and to
communicate a decision regarding that conduct to the other person.

United States v. Pease, __ M.J. __, slip op. at 12–13 (N.M. Ct. Crim. App. 14 July 2015).

10 ACM 38551
 We ourselves, after making allowances for not having observed the witnesses, are
convinced beyond a reasonable doubt of the appellant’s guilt. We find the appellant’s
version of the encounter in the bathroom not credible. We find no reason why, in a suite
with a bed and a sofa, the victim would call out to the appellant to meet her in the
bathroom, become so overcome with ardor that she would tumble into the bathtub with
the appellant, guiding his penis toward her vagina, until they realized that they had no
condoms. We also do not find believable that after this alleged sudden fit of desire, upon
finding they had no condoms, they simply stopped any intimate conduct altogether, put
on their clothes, and retired to the living room to lie down on separate parts of the
oversized sofa. In conjunction with the unlikely timing incorporated in his version of
events, we find his far-fetched account unworthy of belief. Instead, we credit the
testimony that the appellant was completely aware of how intoxicated the victim was,
resisted efforts by other Airmen to escort the victim back to her room, and expressed
concern the next day that the victim may have believed he took advantage of her. We are
convinced beyond a reasonable doubt that the soreness the victim felt was due to the
appellant’s penetration of her vagina with his finger and that he did so at a time when he
knew or reasonably should have known she was incapable of consenting due to her
intoxication.

Additionally, after evaluating the evidence in the light most favorable to the
government, a reasonable fact-finder could have found these elements established beyond
a reasonable doubt. The victim’s soreness the next morning, in conjunction with the
appellant’s admission at trial that he may have penetrated the victim’s vagina is sufficient
to find the sexual act occurred. Similarly, taking the evidence in the light most favorable
to the prosecution, the friend’s account of the victim being so intoxicated that she could
not walk unaided and was vomiting, and he in fact had to move her to the floor to prevent
her from falling off the bed, supported the conclusion that she remained incapable of
consent up until the time when she awoke and returned to her room to change.

Due Process Challenge to Article 120, UCMJ

We review the constitutionality of a statute de novo. United States v. Disney,
62 M.J. 46, 48 (C.A.A.F. 2005).

The Due Process Clause of the Fifth Amendment9 “requires ‘fair notice’ that an
act is forbidden and subject to criminal sanction” before a person can be prosecuted for
committing that act. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (quoting
United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Due process “also requires
fair notice as to the standard applicable to the forbidden conduct.” Id. (citing Parker v.
Levy, 417 U.S. 733, 755 (1974)). In other words, “[v]oid for vagueness simply means
that criminal responsibility should not attach where one could not reasonably understand
that his contemplated conduct is proscribed.” Parker, 417 U.S. at 757 (citing United
9
U.S. CONST. amend. V.

11 ACM 38551
States v. Harriss, 347 U.S. 612, 617 (1954)). In short, a void for vagueness challenge
requires inquiry into whether a reasonable person in the appellant’s position would have
known that the conduct at issue was criminal. See, e.g., Vaughan, 58 M.J. at 31
(upholding a conviction under the General Article for leaving a 47-day-old child alone on
divers occasions for as long as six hours; while the Article did not specifically list child
neglect as an offense, the appellant “should have reasonably contemplated that her
conduct was subject to criminal sanction, and not simply the moral condemnation that
accompanies bad parenting”); United States v. Sullivan, 42 M.J. 360, 366 (C.A.A.F.
1995) (“In our view, any reasonable officer would know that asking strangers of the
opposite sex intimate questions about their sexual activities, using a false name and a
bogus publishing company as a cover, is service-discrediting conduct under Article 134[,
UCMJ].”).

In addition, due process requires that criminal statutes be defined “in a manner that
does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461
U.S. 352, 357 (1983). This “more important aspect of the vagueness doctrine” requires
that the statute “‘establish minimal guidelines to govern law enforcement’” rather than
“‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their
personal predilections.’” Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574–75
(1974)) (alteration in original).

The relevant provision of Article 120(b)(3), UCMJ, makes it a crime to

commit[] a sexual act upon another person when the other
person is incapable of consenting to the sexual act due to—
(A) impairment by any drug, intoxicant, or other similar
substance, and that condition is known or reasonably should
be known by the person; or (B) a mental disease or defect, or
physical disability, and that condition is known or reasonably
should be known by the person.

A “sexual act” is defined, in relevant part, as “the penetration, however slight, of the
vulva or anus or mouth of another by any part of the body or by any object, with an intent
to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire
of any person.” Article 120(g)(1)(B), UCMJ. With regard to consent, the statute
provides “[a] sleeping, unconscious, or incompetent person cannot consent.” Article
120(g)(8)(B), UCMJ.

The appellant specifically avers that the use of the terms impairment and
competent, without judicial definition, render the statute void for vagueness. As the
Supreme Court has observed, we do not evaluate the statute in the abstract. “In
determining the sufficiency of the notice a statute must of necessity be examined in the
light of the conduct with which a defendant is charged.” Parker, 417 U.S. at 757

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(quoting United States v. National Dairy Corp., 372 U.S. 29, 33 (1963)) (internal
quotation marks omitted). In this case, the appellant is charged with engaging in a sexual
act with a woman who was so intoxicated that she could not walk unaided from the
bathroom to the bed in the adjoining room. While under other facts the terms cited may
leave some ambiguity to the degree of impairment necessary to render a person incapable
of consenting, “a person to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the Court.” Id. at 759 (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)) (internal quotation marks omitted).

We find appellant’s arguments that Article 120(b)(3), UCMJ, is void for
vagueness unconvincing. The appellant was on reasonable notice that his conduct was
subject to criminal sanction. This issue is without merit.

Victim Impact Statement

The appellant claims, also for the first time on appeal, that the content and late
submission of the victim impact statement constituted error in the staff judge advocate’s
recommendation. According to the appellant, the statement’s late submission and content
was impermissible under the applicable Air Force Instruction. The standard of review for
determining whether post-trial processing was properly completed is a question of law
reviewed de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). R.C.M.
1106(f)(6) provides: “Failure of counsel for the accused to comment on any matter in the
recommendation or matters attached to the recommendation in a timely manner shall
waive later claim of error with regard to such matter in the absence of plain error.”10
Accordingly, we apply the test for plain error set out above.

Assuming without deciding that either the content or late submission of the victim
impact statement rendered the staff judge advocate’s advice plainly erroneous, the
appellant was not materially prejudiced. Pursuant to R.C.M. 1107(b)(3)(B)(iii), the
convening authority may consider “[s]uch other matters as the convening authority deems
appropriate. However, if the convening authority considers matters adverse to the
accused from outside the record, with knowledge of which the accused is not chargeable,
the accused shall be notified and given an opportunity to rebut.” The appellant was given
a copy of the victim impact statement and chose not to object to the statement or rebut it.
The convening authority had discretion to consider it independent of the regulatory
provisions concerning victim impact statements. Accordingly, the appellant was not
materially prejudiced by any alleged regulatory defect in handling the statement.

10
As with R.C.M. 920(f) discussed above, despite the use of the term waiver in R.C.M. 1106(f)(6), failure to object
legally constitutes forfeiture. Sousa, 72 M.J.at 651–52.

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 Post-trial Delay

Finally, the appellant asserts that this court should grant him meaningful relief in
light of the 144 days that elapsed between completion of trial and the convening
authority’s action. Under United States v. Moreno, courts apply a presumption of
unreasonable delay “where the action of the convening authority is not taken within 120
days of the completion of trial.” 63 M.J. 129, 142 (C.A.A.F. 2006). The appellant does
not assert any prejudice, but argues that the court should nonetheless grant relief under
United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002).

This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Bischoff, 74 M.J. 664 (A.F. Ct. Crim.
App. 2015). The factors include the length and reasons for the delay, the length and
complexity of the record, the offenses involved, and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 670. The appellant has not asserted any
additional factors merit consideration in this case. The length of the delay only exceeded
the standard by 24 days. While the time required for processing is normally completely
within the control of the government, we note that appellant’s counsel took from
20 November 2015 to 19 December 2015 to review the draft transcript and obtained an
extension of time to file clemency materials. The record itself was substantial,
comprising 14 volumes. The offense, a violation of Article 120, UCMJ, was a serious
offense. Finally, there was no evidence of bad faith or gross negligence on the part of the
government. On the whole, we find the delay, although presumptively unreasonable, to
be reasonable in this case and conclude no Tardif relief is warranted.

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are

AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Deputy Clerk of the Court

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