## Facts

- Specialist (SPC) Torrence A. Robinson and SPC VM attended a party where SPC VM consumed alcohol and was visibly intoxicated (stumbling, slurred speech), including to Robinson.
- SPC VM left the party to drive back to the barracks and nearly hit a stop sign; the host followed her to ensure she arrived safely.
- Robinson told his wife he was going to check on a drunk soldier in the barracks and went to SPC VM’s room.
- Inside the room, SPC VM was in bed with a trash can and water bottle nearby; Robinson later told investigators she was “pretty much asleep” when he arrived.
- Robinson claimed SPC VM initiated sexual contact; he later stated he believed she was “probably too intoxicated to consent.”
- SPC VM testified she did not hear Robinson enter, briefly regained consciousness during the sexual act, then blacked out.
- A general court-martial convicted Robinson (contrary to pleas) of (1) violating a general order by engaging in a prohibited relationship (Article 92) and (2) sexual assault (Article 120), and sentenced him to a bad-conduct discharge, reduction to E-1, and forfeiture of all pay and allowances.
- The convening authority approved the sentence, and the Army Court of Criminal Appeals summarily affirmed.

## Issues

1. Whether excluding evidence of an allegedly flirtatious relationship under M.R.E. 412(b)(1)(C) violated Robinson’s constitutional rights.
2. Whether the military judge plainly erred by failing to instruct the panel on the mens rea required for the Article 92 prohibited-relationship offense.
3. Whether the evidence was legally sufficient to prove Robinson knew or reasonably should have known SPC VM was too intoxicated to consent, as required for the Article 120 offense.

## Decision

- The Court of Appeals for the Armed Forces affirmed the findings and sentence.
- The court held the evidence was legally sufficient to establish Robinson knew or reasonably should have known SPC VM was incapable of consenting due to intoxication.
- Assuming without deciding that excluding the flirtatious-relationship evidence was error, the court held any error was harmless beyond a reasonable doubt.
- The court held the Article 92 instruction was not plain error because any deficiency was not clear or obvious and Robinson did not show material prejudice.

## Legal Principles

- In an intoxication-based incapacity sexual-assault case under Article 120, the government must prove beyond a reasonable doubt the accused knew or reasonably should have known the victim was incapable of consenting.
- Legal sufficiency is satisfied if, viewing the evidence in the light most favorable to the prosecution, a rational factfinder could find the elements beyond a reasonable doubt.
- Under M.R.E. 412(b)(1)(C), even if excluded evidence is constitutionally required, appellate relief is unavailable if the exclusion was harmless beyond a reasonable doubt.
- When instructional error is not preserved, review is for plain error; the appellant must show clear or obvious error and material prejudice.

## Conclusion

CAAF upheld Robinson’s convictions, concluding that the victim’s obvious intoxication, Robinson’s observations on entering the room, and his post-incident admission supported the finding that he knew or should have known she could not consent; any assumed M.R.E. 412 error was harmless, and the Article 92 instruction was not plainly erroneous.


United States v. Robinson, 77 M.J. 294 (C.A.A.F. 2018)