United States v. Bailey, 17-0265/CG

Colby C. Bailey, a Coast Guard seaman, was convicted at a general court-martial of three specifications of sexual assault and one of abusive sexual contact under Article 120, UCMJ; sentence included 18 months confinement, reduction to E‑1, dishonorable discharge, and forfeiture of all pay and allowances.
The Coast Guard Court of Criminal Appeals (CCA) affirmed the findings and stated the sentence was affirmed “as approved below,” but its opinion omitted mention of the forfeiture of all pay and allowances.
At trial Bailey requested a defense-drafted instruction defining “incapable” (e.g., "complete and total mental impairment," "while asleep or unconscious"); the military judge denied the request and did not define "incapable," but instructed using the Benchbook definition of "consent."
The government charged under Article 120(b)(3) (incapable due to impairment by intoxicant); the defense-requested instruction quoted language resembling Article 120(b)(2) (asleep/unconscious) and required a stricter showing than Article 120(b)(3) and prior case law.
The Court of Appeals for the Armed Forces (CAAF) reviewed whether the judge erred by refusing the requested instruction or by failing sua sponte to define “incapable of consenting,” and whether the CCA’s affirmation was ambiguous as to forfeiture.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the military judge erred by refusing the defense-requested definition of “incapable”	The requested definition was legally correct and necessary to convey that the complainant had to be completely unable to appraise or communicate (defense framed as required for fair consideration).	The requested instruction misstated the law (imported language from Article 120(b)(2), required "complete and total" incapacity, and improperly suggested sleep/unconsciousness was required).	Court held the requested instruction was incorrect as a matter of law and therefore properly refused.
Whether the military judge was required sua sponte to define “incapable of consenting”	Judge should have defined the element to avoid juror confusion about the meaning of “incapable.”	“Incapable” is a common-usage term; combined with the given consent instruction, no additional definition was necessary.	Court held no sua sponte instruction was required because the plain meaning plus the consent instruction sufficed.
Whether the CCA’s opinion was ambiguous about whether forfeiture of all pay and allowances was affirmed	N/A	N/A	Court found the CCA’s description of the affirmed sentence ambiguous for omitting reference to forfeiture and remanded to the CCA for clarification.

United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (approved definition of “incapable of consenting” as lacking cognitive ability to appreciate conduct or lacking physical/mental ability to make or communicate a decision)
United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) (three‑prong test for evaluating refusal of a requested instruction)
United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012) (all three Carruthers prongs required to find instructional error)
United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000) (common words in universal use need no judicial definition)
United States v. Kosek, 41 M.J. 60 (C.M.A. 1994) (remand for clarification is appropriate remedy for ambiguous rulings)