Last week CAAF granted review in this Air Force case:

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue raised by appellate defense counsel:

UPON REQUEST BY THE DEFENSE COUNSEL AND UTILIZING A DEFENSE PROPOSED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM “INCAPABLE”?

And the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S INVOCATION OF HIS RIGHT TO COUNSEL IN HIS AFOSI INTERVIEW AT TRIAL OVER DEFENSE OBJECTION, AND IF SO, WHETHER THAT ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant raised a whopping 21 assignments of error, including 15 personally-asserted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the CCA’s opinion is a hefty 40 pages long with a six-page partial dissent. The CCA doesn’t mention the issue specified by CAAF, but it does address the granted issue explaining:

The Defense specifically requested the military judge to instruct the members that “a person is capable of consenting to a sexual act of sexual intercourse unless she is incapable of: (1) understanding the act; (2) it’s [sic] motive; (3) and its possible consequences.” (emphasis added). Appellant argues the proposed instruction was necessary to clarify for the members that a person can be impaired and yet have the capacity to consent to sexual intercourse.

Slip op. at 20 (annotation in original). The court concluded that the requested instruction was not accurate:

The Defense’s requested definition failed to address an inability to consent where the alleged victim lacks the physical or mental ability to do so. Instead, the Defense’s proposed definition focused solely on the alleged victim’s understanding and appreciation of the event. In addition, the Defense’s requested instruction added additional requirements that the alleged victim also not understand Appellant’s motive or the consequences of the act. As the Defense’s proposed instruction is incomplete and potentially misleading, it was not error for the military judge to decline to provide the Defense’s requested instruction.

Slip op. at 23. As for the instructions actually given, the CCA found:

Under the facts of this case, the definition of consent as a freely given agreement was sufficient based on the ordinary understandings of the words used to define consent. In addition, the definition of “impairment” was consistent with the normal sense of the word in common usage. The military judge’s instructions ensured that the members were adequately advised that “impairment” was not meant to stand on its own, but to be read in conjunction with the term “incapable of consenting.” In other words, impairment alone was not sufficient to show inability to consent. The impairment would have to be to a certain level such that the alleged victim was unable to enter into a freely given agreement.

Slip op. at 23. Furthermore, the CCA observed that:

The Government, rather than erroneously suggesting that any level of intoxication equates to an inability to consent, focused instead on the extreme level of impairment of SA AD that evening, to include that her blood-alcohol level may have been as high as .34, she needed assistance from her friends to get into the house, she passed out from alcohol before Appellant arrived, Appellant likely had to carry her up the stairs because of her intoxication, she had significant memory loss as a result of her intoxication, and Appellant’s actions and statements afterward suggested that he understood that she was too intoxicated to consent when he engaged in sex with her.

Slip op. at 24.

The CCA’s factual sufficiency analysis of this conviction is found on pages 7-9 of the slip op.

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