United States v. Clugston
201500326
| N.M.C.C.A. | Jan 31, 2017Background
- Service-member (appellant) was convicted by a general court-martial of one specification of sexual assault under Art. 120(b)(3)(A), UCMJ (sexual act with a person incapable of consenting due to impairment by alcohol); sentence included confinement and a dishonorable discharge (punitive discharge disapproved by convening authority).
- Incident: victim (LCpl JSM) drank heavily, fell asleep fully clothed in her barracks room after socializing with appellant and others; she awoke to the appellant on top of her during penile-vaginal penetration; forensic swabs contained the appellant’s semen/DNA.
- Appellant advanced an affirmative defense of automatism/sexsomnia (sleepwalking sexual activity) supported by childhood sleepwalking history and expert testimony; defense argued alcohol precipitated parasomnia.
- Members acquitted appellant of the alternate specification (sex while victim was asleep/unaware) but convicted on the impairment-by-alcohol theory; military judge instructed on unconsciousness/automatism and that voluntary intoxication is not a defense.
- On appeal, appellant raised four assignments of error: legal and factual insufficiency (both incapacity of victim and appellant’s consciousness), erroneous jury instructions conflating voluntary intoxication and unconsciousness, Article 120(b)(3)(A) vagueness, and plain error in the reasonable-doubt instruction. The court affirmed findings and sentence.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Legal & factual sufficiency — victim incapable due to alcohol impairment | Victim was too impaired by alcohol to consent; evidence insufficient to prove incapacity | Evidence showed victim’s sleep was deepened by alcohol such that she remained unaware during undressing and penetration; impairment rendered her incapable | Affirmed: sufficient evidence that alcohol-deepened sleep rendered victim incapable of consenting during the acts leading to penetration |
| Legal & factual sufficiency — appellant’s consciousness (automatism/sexsomnia) | Appellant acted while unconscious from sexsomnia triggered by alcohol; government failed to prove consciousness beyond a reasonable doubt | Expert and lay evidence rebutted sexsomnia hypothesis; lack of recent parasomnia history and complexity of conduct supported voluntariness | Affirmed: appellate court convinced beyond a reasonable doubt appellant did not suffer parasomnia; even assuming close call, voluntary intoxication alone cannot establish automatism defense |
| Jury instruction — conflation of unconsciousness and voluntary intoxication | Military judge’s instructions conflated automatism (unconsciousness) with voluntary intoxication, undermining members’ ability to consider sexsomnia | Instructions complied with Torres and R.C.M. 916: told members unconsciousness negates actus reus and government must disprove it; also correctly advised voluntary intoxication is not a defense | Affirmed: instructions contained required Torres elements and any possible ambiguity was harmless beyond a reasonable doubt; members reasonably could and did consider parasomnia despite intoxication evidence |
| Vagueness of Art. 120(b)(3)(A) — term “impairment” | Statute is unconstitutionally vague because “impairment” lacks sufficient notice | Precedent interprets statute to require incapacity to consent and knowledge or reasonable awareness by accused, providing adequate notice | Rejected: statute not unconstitutionally vague under controlling precedent (Solis) |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standards for legal and factual sufficiency review)
- United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (legal sufficiency test)
- United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (factual sufficiency and reasonable doubt explanation)
- United States v. Pease, 74 M.J. 763 (N-M. Ct. Crim. App. 2015) (interpretation of incapacity to consent due to intoxication)
- United States v. Torres, 74 M.J. 154 (C.A.A.F. 2015) (recognizing automatism/unconsciousness defense and burden on government to disprove consciousness)
- United States v. Powell, 469 U.S. 57 (U.S. 1984) (inconsistent verdicts do not bar appellate sufficiency review)
- United States v. Gutierrez, 73 M.J. 172 (C.A.A.F. 2014) (use of evidence from acquitted counts in sufficiency review)
- United States v. Solis, 75 M.J. 759 (N-M. Ct. Crim. App. 2016) (Article 120(b)(3) not unconstitutionally vague)