Petition for Writ of Certiorari — Knox v. United States

’ 941118 DEC 23199

No. ———--

OFFICE OF THE CLERK

IN THE

Supreme Court of the Wutted States

OCTOBER TERM, 1994

Bossy L. KNOox,

Sergeant, United States Air Force,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

December 1994 (202) 767-1562

CN et A RE SALE EES TLIO AE Lacan

QUESTION PRESENTED

Whether the trial judge erred to the substantial prej-

udice of petitioner when he refused to allow petitioner to

testify about the prosecutrix’s sexual promiscuity in sup-

port of his defense of consent, in violation of the Fifth

Amendment of the United States Constitution?

(i)

je UO Ge 40

RO 2 Ore MT

DP DIE PY OIE

<7

eR BER

i hy

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ooo... cece ccceeceeeeeeeee ee iv

I 1

JURISDICTION .............. ENERO Me ME TTR ROOT RT 2

CONSTITUTIONAL PROVISION INVOLVED ............ 2

STATEMENT OF THE CASE ooo... ecccccccccccccccceceseeee 2

REASON FOR GRANTING THE WRIT ........................ 11

THIS COURT SHOULD REVIEW THE UNITED

STATES COURT OF MILITARY APPEALS’

DECISION IN THIS CASE TO CORRECT THE

FUNDAMENTAL UNFAIRNESS OF PETI-

TIONER’S CONVICTION AND TO OUTLINE

THE CONSTITUTIONAL LIMITS OF “RAPE

SHIELD” STATUTES, WHICH BY THEIR

NATURE THREATEN AN ACCUSED’S EXER-

CISE OF HIS UNITED STATES CONSTITU-

TION FIFTH AMENDMENT RIGHT TO DUE

SI MEET MIDs icncscerscceunnsnessennsenseomesistheusenssuans 11

ec sceeshninentndeeliaemnsnibutiodianuas 14

APPENDIX A

Opinion of the United States Court of Military

al lenecliais la

APPENDIX B

Opinion of the United States Air Force Court of

EE eee ee 8a

(iii)

iv

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASE Page

United States v. Valenzuela-Bernal, 458 U.S. 858

FE Ne CL SE RM A STM ar) ore 11, 14

FEDERAL CASES

Doe v. United States, 666 F.2d 43 (4th Cir. 1981) .. 13

United States v. Saunders, 943 F.2d 388 (4th Cir.

1991), cert. den., 112 S.Ct. 1199 (U.S. 1992).... 11, 18

MILITARY CASES

United States v. Dorsey, 16 M.J. 1 (1983) .............. 11

United States v. Elvine, 16 M.J. 14 (C.M.A. 1988).. 11

United States v. Jensen, 25 M.J. 284 (C.M.A.

pS I a ee ee ee ee 9, 11, 18

United States v. Kelly, 33 M.J. 878 (A.C.M.R.

) | Taree re Oe Ee eee errr Une 11, 12

United States v. Knox (unpub. A.F.C.M.R. April

20, 1992), aff’d, M.J. —— (C.M.A. 1994).. 1-2,9

United States v. Knoz, M.J. —— (C.M.A.

SE icchiaccigecRicbdecblinielasitalisaadiaieidiiekilliaes cake ors 1, 9,10

United States v. Williams, 37 M.J. 352 (C.M.A.

RESETS REE RD ee ee Ee narra 11

STATE CASE

State v. Colbath, 180 N.H. 316, 540 A.2d 1212

Sek ne le er 2 ot A SA OR es 12

CONSTITUTIONAL PROVISION

Mat Ms ces 2, 11,14

UNITED STATES STATUTE

28 U.S.C.A. Section 1259(3) (West 1998) ................. 2

UNIFORM CODE OF MILITARY JUSTICE

Article 39(a), 10 U.S.C. Section 839(a) (1988)... 7

Article 67a, 10 U.S.C.A. Section 867a (West Supp.

SIT Se ER SR oN Oven 2

Article 81, 10 U.S.C. Section 881 (1988)..................... 2

Article 120, 10 U.S.C. Section 920 (1988)................... 2

MILITARY RULE OF EVIDENCE

Military Rule of Evidence 412 ...................... 5,10, 11, 12

LS OO ae oS ee oe

IN THE

Suprenve Cont of the United States

OCTOBER TERM, 1994

No.

Bossy L. KNox,

Sergeant, United States Air Force,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT Or CERTIORARI

The petitioner, Bobby L. Knox, respectfully prays that

a writ of certiorari issue to review the order and judgment

of the United States Court of Military Appeals entered in

his case on 29 September 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, United States v. Knox, M.J.

(C.M.A. 1994) [hereinafter cited as Knox II] is reprinted

at Appendix A. The decision of the United States Air

Force Court of Military Review. United States v. Knox

(unpub. A.F.C.M.R. April 20, 1992), aff'd,

M.J.

2

(C.M.A. 1994) [hereinafter cited as Knox 1] is

reprinted at Appendix B.

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 29 September 1994. The jurisdic-

tion of this Court is invoked under 28 U.S.C.A. Section

1259(3) (West 1993) and 10 U.S.C.A. Section 867a

(West Supp. 1994),

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution of the United

States provides, in pertinent part, “[n]o person shall . . .

be deprived of life, liberty, or property, without due proc-

ess of law”.

STATEMENT OF THE CASE

At a general court-martial composed of officer and en-

listed members petitioner was charged with rape (in viola-

tion of U.C.M.J. (Uniform Code of Military Justice)

Article 120) and conspiracy to rape (in violation of

U.C.M.J. Article 81). Petitioner pleaded not guilty to the

charges.

Petitioner, SrA (Senior Airman) Theresa Hall, and Sgt

(Sergeant) Lu Castonguay worked in the same unit at

Kadena AB, Japan. SrA Hall and Sgt Castonguay were

romantically and sexually involved. SrA Hall and _ peti-

tioner were friends and confidants. See R. 121. On Fri-

day 28 April 1989 petitioner was scheduled to depart for

the Philippines for temporary duty. However, his depar-

ture was delayed until the next day and petitioner returned

to his dormitory at about 4:00 p.m. At approximately

the same time, several members of petitioner’s work unit

had gathered outside of SrA Hall’s dormitory to celebrate

the end of the work week and a successful inspection.

Many of the attendees were drinking, and people flowed

in and out of the party.

3

Because petitioner was a Bay Chief in the dormitory

he was entitled to two rooms without a roommate. See

R. 391. He had arranged his suite so that one room

served as a living room and the other as a bedroom. Two

twin size beds were moved into the bedroom and pushed

together. Because petitioner believed he would be en

route to the Philippines, he had earlier agreed to let Sgt

Castonguay and SrA Hall spend the night in his room.

After the party broke up, SrA Hall and Sgt Castonguay

returned with petitioner to petitioner’s room. See R. 405.

SrA Hall, Sgt Castonguay, and petitioner watched television,

listened to music, had visitors, and drank more beer. Peti-

tioner went to the rest room down the hall several times.

During one of these trips down the hall, Sgt Castonguay

locked the appellant out of his own room. See R. 132,

411. Petitioner believed that Sgt Castonguay and SrA

Hall had decided they would spend the night in petitioner’s

room and that they were ready to go to bed. See R. 413.

Petitioner agreed to spend the night in SrA Hall’s room

in another dormitory, but later decided that staying in her

room was not a good idea—he did not want to be seen

leaving a female dormitory the next morning, and was

concerned about missing his flight to the Philippines. Peti-

tioner returned to the common area of his dormitory and

watched television. Petitioner was giving Sgt Castonguay

and SrA Hall time to have sex before he returned to the

room. See R. 414-416.

Petitioner’s and prosecutrix’s accounts of events essen-

tially concur up to this point in time. A summary of peti-

tioner’s version of later events follows: Petitioner testified

that he returned to his room later and in the dark saw

Sgt Castonguay and SrA Hall naked, with Sgt Castonguay

performing cunnilingus on SrA Hall. Petitioner laid down

on the other end of the bed facing the wall and fell asleep.

See R 419. He was awakened, looked up, and saw SrA

Hall on all fours at the end of the bed performing fellatio

4

on Sgt Castonguay. See R. 421. SrA Hall then turned

her head to see the petitioner. The petitioner interpreted

her suggestive looks and motions to mean she wanted him

to join them in sex. See R. 422. Petitioner got up and

stood at the end of the bed. He put his hands on SrA

Hall’s waist and rubbed his penis against her buttocks.

He then put his penis in SrA Hall’s vagina and began

having intercourse with her. Petitioner decided he should

have put on a condom before having intercourse with

SrA Hall, so he withdrew his penis from her vagina. SrA

Hall reached back for him to encourage him to reenter

her vagina. He reinserted his penis in her vagina. See

R. 425. SrA Hall began to move along with his rhythm.

See R. 423. Petitioner continued to have intercourse with

her for five to seven minutes, then ejaculated while his

penis was in her vagina. See R. 424. The petitioner then

withdrew his penis from her vagina and put on his pants.

SrA Hall began to get upset. She looked at petitioner and

then at Sgt Castonguay and told Sgt Castonguay to get

petitioner out of the room. See R. 427-428. SrA Hall

began cursing at Sgt Castonguay. Petitioner said words

to the effect of “this is fucked up” and “what’s the matter

with her.” Sgt Castonguay told the appellant she would

be all right. See R. 428.

A summary of SrA Hall’s testimony regarding later

events follows: After petitioner left his room to go to

SrA Hall’s room, SrA Hall finished a cigarette, got un-

dressed, and joined Sgt Castonguay on appellant’s bed.

See R. 137. They were lying on top of the comforter

engaged in foreplay when SrA Hall fell asleep. See R.

138. She did not remember having sexual intercourse

with Sgt Castonguay and stated that if they had engaged

in sexual intercourse, she would have remembered it. See

R. 139, 163. (This testimony contradicted a written state-

ment that SrA Hall gave to the Air Force Office of Spe-

cial Investigations in which she stated she had consensual

sex with Sgt Castonguay that night. See R. 166).

5

The next thing SrA Hall remembered was being awake,

lying on her stomach, with a comforter over her head and

someone having sexual intercourse with her, entering her

vagina from behind. See R. 139, 172. As she was waking

up, she moved her hips in sync with a rhythmic motion for

five to ten seconds. She then realized someone was sitting

next to her on the bed with his hands on her shoulder.

She looked through a hole in the comforter and saw peti-

tioner having sex with her and Sgt Castonguay sitting next

to her on the bed. See R. 140. She said “Lu, get him the

hell out of here.” R. 146. She felt petitioner withdraw

his penis and jump off the bed. She said petitioner sounded

“surprised” (R. 177) and said “Lu, we fucked up,” “Lu,

I didn’t know that she didn’t know” and “Lu, we're in

trouble”. R. 146. Sgt Castonguay said, “It’s okay Bobby,

she’ll be okay in a minute.” R. 146. SrA Hall then went

back and forth between dormitory buildings talking to

people she knew and ended up sitting on the stairs outside

her dormitory talking to the appellant and Sgt Castonguay.

Petitioner and Sgt Castonguay apologized to her because

she was upset about the situation. SrA Hall got upset with

Sgt Castonguay because he would not talk to her. See

R. 190. About 4:00 a.m. on 29 April 1989 SrA Hall

went to bed and slept until about noon. About 3:00 p.m.

on 29 April 1989 one of SrA Hall’s friends persuaded her

to report the incident.

Prior to trial defense counsel informed the court and

Opposing counsel with notice of, and request to use evi-

dence which might be barred under Military Rule of

Evidence 412." The Military Judge postponed ruling until

1 Military Rule of Evidence 412 reads, in pertinent part:

(a) Notwithstanding any other provision of these rules of

this Manual, in a case in which a person is accused of a non-

consensual sexual offense, reputation or opinion evidence of

the past sexual behavior of an alleged victim of such noncon-

sensual sexual offense is not admissible.

(b) Notwithstanding any other provision of these rules or

this Manual, in a case in which a person is accused of a non-

” is

6 |

an appropriate time. See R. 13. The Military Judge did |

permit limited questions on cross-examination of SrA Hall

consensual sexual offense, evidence of a victim’s past sexual

behavior other than reputation or opinion evidence is also not

admissible, unless such evidence other than reputation or

opinion evidence is—

(1) admitted in accordance with subdivisions (c)(1) and

(c) (2) and is constitutionally required to be admitted;

or

(2) admitted in accordance with subdivision (c) and is

evidence of—

(A) past sexual behavior with persons other than the 9

accused, offered by the accused upon the issue of

whether the accused was or was not, with respect

to the alleged victim, the source of semen or injury;

or

(B) past sexual behavior with the accused and is offered ;

by the accused upon the issue of whether the alleged

victim consented to the sexual behavior with respect

to which the nonconsensual sexual offense is alleged.

(c) (1) If the person accused of committing a nonconsensual

sexual offense intends to offer under subdivision (b) evidence

of specific instances of the alleged victim’s past sexual behavior,

the accused shall serve notice thereof on the military judge

and the trial counsel.

(2) The notice described in paragraph (1) shall be accom-

panied by an offer of proof. If the military judge determines

that the offer of proof contains evidence described in subdivi-

sion (b), the military judge shall conduct a hearing, which

may be closed, to determine if such evidence is admissible.

At such hearings the parties may call witnesses, including the

alleged victim, and offer relevant evidence. In a case before

a court-martial composed of a military judge and members,

the military judge shall conduct such hearings outside the

presence of the members pursuant to Article 39(a).

(3) If the military judge determines on the basis of the

hearing described ir paragraph (2) that the evidence which

the accused seeks to offer is relevant and that the probative

value of such evidence outweighs the danger of unfair preju-

dice, such evidence shali be admissible in the trial to the extent

an order made by the military judge specifies evidence which

may be offered and areas with respect to which the alleged

victim may be examined or cross-examined.

7 |

about prior relations between Sgt Castonguay and SrA

Hall, but not as to other partners or reputation. See R.

195-197, 203-205.

After the prosecution rested, an Article 39(a) session ”

was called to discuss petitioner’s request to use opinion

evidence in support of a defense of consent. See R. 323-

381. Petitioner’s motion indicated that petitioner be-

lieved that the intercourse was consensual, based in part

upon his belief and knowledge of SrA Hall’s promiscuous

and experimental sexual behavior. Petitioner took the

stand and testified regarding his knowledge of SrA Hall’s

reputation and habits prior to the incident on 28 April

1989.

Prior to her arrival at Kadena Air Base, SrA Hall sent

a letter to her unit sponsor, enclosing a picture of herself

holding a beer and draping her arm over a man in a

suggestive manner. See R. 330. This picture was appar-

ently posted in the work area with the word “bimbo”

written on it. See id. After petitioner and SrA Hall be-

came friends, she confided in him regarding her problems

and her exploits. See R. 341. Petitioner counseled SrA

Hall that her sexual proclivities prevented her from hav-

ing a lasting and fulfilling relationship. Petitioner knew

of the affairs SrA Hall had with several men who lived

in his dormitory. She was known to have had sex with

more than one man in an evening. Petitioner believed

that she had sex where others could observe her three to

five times. See R. 342. SrA Hall had swum nude with

several men as the only female present, and allowed her-

self to be used as a “volleyball”. Petitioner knew these

facts, and of many other sexual exploits of SrA Hall,

prior to 29 April 1989. See R. 339-340. Petitioner be-

lieved SrA Hall “was basically liberal when it came to

having sex. It was nothing to her to have sex whenever,

2U.C.M.J. Article 39(a) sessions are sessions held out of the

presence of court members. See U.C.M.J. Article 39(a), 10 U.S.C.

Section 839(a) (1988).

8

with whoever and however. Nothing sexual was beyond

her.” R. 344. Petitioner testified that his opinion regard-

ing SrA Hall's attitude toward sex affected the decision he

made about having sex with SrA Hall on 28 April 1989.

See R. 346. Specifically, petitioner believed that SrA

Hall was a willing participant in sexual activity with him

on 29 April 1989. See R. 347.

Trial defense counsel stated he wanted to address peti-

tioner’s defense of mistake of fact. He believed that he

could establish petitioner’s version of the facts and let the

court members decide if his choice to engage in sex based

on suggestive looks from SrA Hall constituted a mistake

of fact:

Just because somebody’s in your room having sex

with their boyfriend, no matter what the look on

their face, doesn’t mean that it’s reasonable for you

to go over there and have sex with them. The past

background of that person would play an important

part on your decision as to whether or not it would

be reasonable to have sex and this incident did not

fit outside the norm that [petitioner] was used to

hearing about with [SrA] Hall.

R. 370. Trial defense counsel indicated that he would

be satisfied to discuss what was going through petitioner’s

mind, but that would mean going into details. See

R. 375.

The Military Judge denied the motion, indicating that

the evidence was not relevant and material to the defense

presentation of an affirmative defense:

The Court finds that neither the individual acts of

sexual conduct of Sergeant Hall, nor her reputation,

either known or believed by the accused, has any

tendency to make the existence of any fact more or

less probable than it would without the evidence. . . .

Now the Court finds further that the evidence is not

material. By the accused’s testimony the Court does

9

not find any mistake of fact as to her consent being

raised, rather Sergeant Knox’s testimony represents

consensual sex... .. Consensual intercourse would be

an absolute defense to the charges. So the impor-

tance of the reasonableness of the accused’s alleged

mistake of fact is not important and by the testimony

of the accused, by the theory that the Court doesn’t

really find that it would be in dispute.

R. 379-380.

Petitioner was ultimately convicted of both charges and

sentenced to a dishonorable discharge, hard labor without

confinement for ninety days, and reduction to the lowest

enlisted grade. On 30 May 1990 the convening authority

approved the sentence as adjudged.

Petitioner appealed to the United States Air Force

Court of Military Review. In an unpublished opinion

dated 20 April 1992, the court affirmed the findings of

guilty and the sentence. See Knox I at 8. With regard

to the relevant issue, the Court found that the Military

Judge’s ruling that the proposed “evidence was neither

material nor relevant” was correct. Knox I at 7. The

Court noted “the fact-finders received two distinct, and

widely divergent, accounts of the event which posed a

factual issue of consent, unfettered by any true possibility

of mistake. They resolved this question of fact by be-

lieving the victim.” Jd. The Court noted that because

one is willing to engage in sex with one person that this

does not necessarily mean the desire exists to have sex

with another person, at another time, at another place.

See id. (citing United States v. Jensen, 25 M.J. 284, 290

(C.M.A. 1987) (Sullivan, J., dissenting) ). The Court held

that the Military Judge did not clearly abuse his discretion

in excluding the proposed testimony. Knox / at 7.

Petitioner appealed the decision of the United States

Air Force Court of Military Review to the United States

Court of Military Appeals. See Knox II. The United

kO

States Court of Military Appeals granted review, essen-

tially, of the question presented here. See Knox II at 2.

The Court first noted that petitioner’s defense did not

depend on the question whether petitioner “honestly and

reasonably believed” SrA Hall was consenting to sex.

Knox II at 6. The Court noted “[t]o the extent that the

victim’s reputation made it more or less likely that she

would participate in such a threesome is exactly the kind

of evidence that [M.R.E.] 412 proscribes.” Jd. Further,

the Court noted that petitioner was not foreclosed from

presenting evidence of his experiences with SrA Hall (in-

cluding sexual banter and watching an adult movie with

her), was allowed to testify that SrA Hall indicated that

she wanted the petitioner to join in sex with she and

Sgt Castonguay, and that he was allowed to present a

defense that he “reasonably and honestly thought she had

consented to have sex with him.” /d. The Court stated

that petitioner was not denied the opportunity to present

his defense. Jd. The Court stated “[w]e agree with the

military judge’s ruling that such evidence was not rele-

vant, material, or favorable to the defense.’ /d. (citation

omitted). The Court affirmed the decision of the United

States Air Force Court of Military Review.

11

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD REVIEW THE UNITED

STATES COURT OF MILITARY APPEALS’ DECISION

IN THIS CASE TO CORRECT THE FUNDAMENTAL

UNFAIRNESS OF PETITIONER’S CONVICTION AND

TO OUTLINE THE CONSTITUTIONAL LIMITS OF

“RAPE SHIELD” STATUTES, WHICH BY THEIR

NATURE THREATEN AN ACCUSED’S EXERCISE

OF HIS UNITED STATES CONSTITUTION FIFTH

AMENDMENT RIGHT TO DUE PROCESS OF LAW.

Relevant and material evidence which is favorable to

the defense must be admitted. See United States v.

Valenzuela-Bernal, 458 U.S. 858, 867 (1982); United

States v. Williams, 37 M.J. 352, 359 (C.M.A. 1993);

United States v. Dorsey, 16 M.J. 1, 5 (1983). “The

defendant has a constitutional right to present admissible

evidence that is probative of his innocence by showing

the government’s failure to prove the offense charged, by

establishing a defense, or by attacking the credibility or

fair mindedness of a witness .... A defendant’s reason-

able, albeit mistaken, belief that the victim consented

may constitute a defense to rape.” United States v. Saun-

ders, 943 F.2d 388, 391-392 (4th Cir. 1991). Evidence

offered for “the express purpose of demonstrating a mis-

taken belief on appellant’s part that the prosecutrix had

given her consent” may be admissible. United States v.

Elvine, 16 M.J. 14 (C.M.A. 1983) (Everett, C.J., con-

curring). See also United States v. Jensen, 25 M.J. 284,

287 (C.M.A. 1987) (rape conviction reversed where evi-

dence on the issue of consent was excluded by M.R.E.

412).

United States v. Kelly, 33 M.J. 878 (A.C.M.R. 1991)

is on point for the relevant issue with the case at bar.

In Kelly, appellant had observed and been the object of

the prosecutrix’s “sexually provocative, flirtatious man-

ner.” Jd. at 879. Kelly testified that he went to the

prosecutrix’s room; she woke from a drunken sleep, kissed

him, helped him remove their clothing, and had consens-

12

ual sex with him in several positions. /d. at 880. Kelly

then left. /d. The prosecutrix testified that she passed

out and was awakened by a penis inside her. She passed

out again and observed someone leave as she woke. /d.

at 881. The Military Judge excluded evidence relevant

to the question whether the prosecutrix consented. /d. at

879. The Military Judge also excluded evidence relevant

to appellant’s mistaken perception that the prosecutrix

was willing to engage in sex with him. /d.

The United States Army Court of Military Review held

“{t]he evidence tended to show that [the prosecutrix] was

engaged in a pattern of behavior rather than unrelated

incidents.” Jd. at 882 (citation omitted). The court also

held the acts were “public” in nature. /d. at 883. There-

fore, such evidence was probative of appellant’s state of

mind and less entitled to protection under M.R.E. 412:

[T]he public behavior of a prosecutrix is significant

in weighing the probative value of particular evidence

against the prejudice to her privacy or to rational

decision making by the jury. State v. Colbath, 130

N.H. 316, 540 A.2d 1212 (1988).

We agree with [then] Judge Souter that evidence

describing the prosecutrix’s open, sexually suggestive

conduct in the presence of the public has far less

potential for damaging her reputation than would

revelation of what she may have done behind a

closed door. Evidence of public displays of general

interest in sexual activity can be taken to indicate a

receptiveness to sexual advances that cannot be in-

ferred from evidence of private behavior with chosen

sex partners. (Citations omitted).

Id. at 883.

The defense presented alternate theories at trial. Either

SrA Hall was awake and consented to the sexual inter-

course with petitioner, or SrA Hall was asleep and her

physical responses as well as petitioner's knowledge of

her sexual proclivities led him to believe she was con-

|

13

senting (i.e. mistake of fact). The prior sexual acts evi-

dence was only relevant to the mistake of fact defense.

Since rape is a general intent crime, in order for a mis-

take of fact defense to be successful, the mistake must

be both honest and reasonable. During argunient on

findings, trial counsel conceded petitioner’s mistake was

honest. See R. 809. However, he argued that his mistake

was not reasonable.

Dr. (Lt Colonel) Trichnopoly Narayanaswamy, neu-

rologist and sleep disorder expert, testified there are sev-

eral stages of sleep and sometimes people can perform

functions while asleep. Although it is impossible to estab-

lish that SrA Hall engaged in sex with petitioner while

she was asleep, it was possible, according to expert testi-

mony. See R. 556. The Military Judge based his ruling

on his belief that the proffered evidence was not relevant

nor material. However, the Military Judge did not under-

stand how this evidence was important to petitioner’s

defense of mistake of fact, as indicated by his findings of

fact. The Military Judge failed to understand that peti-

tioner’s belief that SrA Hall consented to sex with him

was tied to his knowledge of her prior sexual behavior.

The proffered evidence was clearly relevant for this pur-

pose. See United States v. Saunders, 943 F.2d 388, 392

(4th Cir. 1991); United States v. Jensen, 25 M.J. 284,

287 (C.M.A. 1987); Doe v. United States, 666 F.2d 43,

48 (1981).

The evidence petitioner sought to present must be ma-

terial as well as relevant. As trial defense counsel as-

serted, absent the excluded evidence, most reasonable

people would find petitioner’s choice to join in sexual

activity, under the circumstances, unreasonable. Exclu-

sion of the proffered evidence effectively deprived peti-

tioner of his opportunity to present the affirmative de-

fense. “Due process guarantees that a criminal defendant

will be treated with ‘that fundamental fairness essential

to the very concept of justice... .’ A violation of

14

these provisions requires some showing that the evidence

lost would be both material and favorable to the de-

fense.” United States v. Valenzuela-Bernal, 458 U.S. 858,

872-873 (1982). The excluded evidence was essential to

petitioner’s mistake of fact defense in this case and was

clearly material.

CONCLUSION

The Military Judge’s exclusion of the proffered evi-

dence of prosecutrix’s sexual promiscuity, which was es-

sential to petitioner’s mistake of fact defense, deprived

petitioner of his right to due process of law under the

United States Constitution Fifth Amendment and resulted

in a fundamentally unfair trial. “Rape shield laws”,

which are common in many jurisdictions, raise important

issues impacting United States Constitution Fifth Amend-

ment rights. This Court should grant review of this case

to redress the fundamental unfairness of petitioner’s con-

viction and to define the parameters of permissible rape

shield statutes.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20832-5113

December 1994 (202) 767-1562

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 93-0341

CMR No. 28628

UNITED STATES,

Appellee

v.

Bossy L. KNox,

Sergeant, U.S. Air Force,

Appellant

Submitted February 23, 1994

Decided Sep. 29, 1994

For Appellant: Colonel Jay L. Cohen and Captain

Robert A. Parks (on brief): Colonel Terry J. Woodhouse.

For Appellee: Colonel Jeffrey T. Infelise and Major

Barnard N. Madsen (on brief).

Military Judge: James C. Heupel

PER CURIAM:

Contrary to his pleas, appellant was convicted, by a

general court-martial composed of officer and enlisted

members, of rape and conspiracy to commit rape, in

violation of Articles 120 and 81, Uniform Code of Mili-

tary Justice, 10 USC §§ 920 and 881, respectively. He

was sentenced to a dishonorable discharge, hard labor

without confinement for 90 days, and reduction to the

2a

lowest enlisted pay grade. The convening authority ap-

proved the sentence, and the Court of Military Review

affirmed. This Court granted review of whether the mili-

tary judge erred in refusing to allow appellant to testify

about the victim’s prior sexual acts and her promiscuity

to support his claim that she consented to sexual intercourse

or to support his defense of mistake-of-fact as to her

consent.

Based upon our review of the record and the briefs of

the parties, we conclude that the military judge properly

excluded the proffered evidence.

The facts as stated by the Court of Military Review

are as follows:

The appellant, the prosecutrix, Theresa, and Ser-

geant “Lu” Castonguay worked in the same shop at

Kadena Air Base, Japan. Theresa and Castonguay

were intimately involved and engaged in sexual rela-

tions on a regular basis. The appellant and Caston-

guay were close friends and confidants.

On 28 April 1989, a Friday, the appellant was

scheduled to go to the Philippines. The same date

members of his shop gathered outside Theresa’s dor-

mitory to celebrate the end of the week and a

favorable dorm inspection. After drinking three or

so beers, Theresa went to her room for a shower.

This occurred about 1990. After her shower, the

appellant invited her and Castonguay to his room.

While she was there and sitting on . . . Castonguay’s

lap, the appellant kept running his hands up and

down her legs. She told him to “knock it off.” By

then she was sipping on her sixth beer.

Co-workers of the appellant testified that he was

in the habit of making crude, sexually explicit re-

marks to Theresa. The appellant either denied mak-

3a

ing the remarks or contended they were said in

jest. Castonguay was also heard to say that since

he was not “[sexually] Satisfying Theresa, he was

going to get [the appellant] to f[- - -] her.”

About 2245 or so, the appellant left the room,

and “Lu” joked about locking him out of his room.

Later, when the appellant returned, “Lu” picked

Theresa up and carried her to the bed. He took off

his clothes and began “rolling around . . . hugging

and kissing” Theresa, who was still dressed. When

Theresa looked up and saw the appellant standing

by the bed, she jumped up and left for the bathroom.

Apparently, the appellant was concerned about

where he was going to Stay for the night since his

bed appeared to be occupied. Theresa said he could

Stay in her room. This appeared to Satisfy the appel-

lant because he left. Theresa sat on the bed, un-

dressed, rolled over next to Castonguay and began

“hugging and kissing” him. She then rolled on her

back and Castonguay rolled on top of her. That’s

the last thing she remembered as she fell asleep.

She does not remember having sex with Castonguay

that evening, and she thinks she would have remem-

bered if she had.

When she awoke, she was on her stomach, and

someone was having sexual intercourse with her.

There was a comforter over her head, and “some

hands were on [her] back.” In the process of waking

up, she assumed her partner was Castonguay and

responded for “S or 10 seconds.” Later, she thought

“there was something funny going on,” and looked

over her shoulder and saw the appellant “having

sex with fher].” She started crying and said, “Lu,

get him the hell out of here.” The appellant with-

drew from her and jumped off the bed. As he

4a

jumped off, he said, “Lu, we f[---Jed up” and “Lu,

we’re in trouble,” and “Lu, I didn’t know that she

didn’t know.” She heard Castonguay say, “It’s okay,

Bobby, she’ll be okay in a minute.” She screamed

for both of them to leave the room so she could

get dressed which they did. Later, the appellant

approached Theresa and said, “we’re really sorry;

we're really sorry and we feel so bad about this; we

discussed it and we’re ready to face the consequences

for what we did.” She subsequently called the Rape

Intervention Crisis Center at the Kadena Clinic. She

said she did not consent to having sexual! intercourse

with the appellant.

Theresa’s and the appellant’s testimony are essen-

tially in agreement as to what happened up to the

point where the appelant left to stay in her room so

she and Castonguay could continue their romantic

interlude. It is here that the two versions of the event

part company. The appellant testified that when he

returned to his room a second time, Theresa and

Castongay were naked and he was performing cun-

nilingus on her. [Appellant] stated he laid down on

the other end of the bed and went to sleep. When he

awoke sometime later, Theresa was on all fours at

the end of the bed performing fellatio on Caston-

guay. Theresa looked at him and he interpreted her

“suggestive looks and motions” as an invitation to

join the sexual encounter. He did so and had sexual

intercourse with her for “5 to 7” minutes, achieving

a climax. When he withdrew from her midway in

the session, she encouraged him to continue. He

said that while Theresa made no noise during the

episode, she was awake and not asleep.

Shortly thereafter, the appellant told the court that

Theresa became upset and told Castonguay “[t]o get

[the appellant] the hell out of there.” The appellant

LN MATa be Oe ow tl

Sa

indicated that this behavior was not unusual for

Theresa as she would occasionally go “spastic like”

and start “cussing” at other people. He denied say-

ing, “Lu, we f[---Jed up,” “Lu, we’re in trouble,”

and “Lu, I didn’t know that she didn’t know.” He

also denied saying, “We’re ready to turn ourselves

in and face the consequences.” He admitted that he

and Castonguay has spoken with Theresa in an at-

tempt to find out “what her problem was[.]” It was

during this conversation that he said Theresa re-

marked, “I bet you’ve done this with other girls.”

The appellant maintained that Theresa consented to

the sexual encounter and that he and Castonguay

had no agreement to engage her in sexual relations.

The defense offered expert testimony that certain

sleep disorders could make it possible for Theresa

to have awakened and consented to sexual inter-

course and not remember it. It was also possible for

the appellant, who had just awakened, to have sexual

relations and not remember all of what had taken

place. However, the existence of a sleep disorder

does not explain the two diametrically opposed ver-

sions of what happened.

Additionally, the defense tendered expert testi-

mony that the alleged victim did not have a post-

traumatic stress disorder as the result of the events

taking place on 28-29 April 1989. The defense also

offered evidence of Theresa’s reputation for not tell-

ing the truth, and the appellant’s reputation for truth-

fulness.

In rebuttal, the government established that the

next morning, Theresa, upset and crying, told a male

friend what had happened. She told him she passed

out in the appellant’s room with Castonguay and

when she awoke the appellant was on top of her.

She said that when she became awake, he got off

6a

and started apologizing. Finally, the government of-

fered expert testimony that Theresa did exhibit symp-

toms of a post-traumatic stress disorder.

* * *

At trial the appellant served notice under Mil.R.

Evid. 412(c)(1) that he intended to “offer evidence

of specific incident and reputation evidence of the

[prosecutrix’s] past sexual behavior.” The appellant

claims “he thought [the prosecutrix] was awake and

by her actions was consenting to his advances.”

Thus, evidence as to his state of mind was constitu-

tionally required.

In his offer of proof under Mil.R.Evid. 412(c)(2),

the appellant stated he would testify that the prose-

cutrix had the reputation of being a “bimbo” who

liked to “party,” was sexually promiscuous, and “very

easy;” he had also, been told that she had taken “her

top off” in a downtown bar; several co-workers had

stated to him that they had contacted [sic] a sexually

transmitted disease from her in the fall of 1988; and

that in July 1988, at a beach party, she engaged in

various sex acts in the presence of others—the ap-

pellant was not at the party, but was told about the

incident.

Unpub. op. at 1-4,6 (AFCMR April 20, 1992).

Mil.R.Evid. 412(a), Manual for Courts-Martial, United

States, 1984, prohibits admission “in a case in which a

person is accused of a nonconsensual sexual offense, [of]

reputation or opinion evidence of the past sexual behavior

of an alleged victim of such nonconsensual sexual offense.

..” Mil.R.Evid. 412(b)(1) prohibits admission “in a

case in which a person is accused of a nonconsensual sex-

ual offense, [of] evidence of a victim’s past sexual behavior

other than reputation or opinion evidence. . .” unless such

evidence is “constitutionally required to be admitted.” We

have recognized that admission of such evidence is con-

Stitutionally required if it is relevant. United States v.

RD FOE eS a aaa

7a

Greaves, No. 93-0203, ——- MJ —— (CMA Sep. 22,

1994).

On appeal, appellant contends the military judge erred

in excluding evidence of Theresa’s promiscuous nature.

He contends such evidence was both relevant and material

to the issue of Theresa’s consent and appellant's reason-

able belief the prosecutrix was consenting. We disagree

for two reasons. First and foremost, appellant’s defense at

trial did not turn upon whether appellant honestly and

reasonably believed that the victim was consenting to his

sexual acts, but rather he testified that he was invited to

join an on-going sexual event. To the extent that the

victim’s reputation made it more or less likely that she

would participate in such a threesome is exactly the kind

of evidence that Mil.R.Evid. 412 proscribes.

Secondly, appellant was allowed to present evidence of

his own experiences with Theresa. In particular, he was

permitted to testify about the sexual banter he and Theresa

engaged in, as well as one occasion when he and Theresa

watched an adult movie together.

Appellant was not denied the opportunity: (1) to tes-

tify that the prosecutrix motioned for him to join in her

sexual encounter with “Lu”; or (2) to present [a] defense

that he reasonably and honestly thought she had consented

to have sex with him.

The issues in controversy in this case are whether the

sexual adventure took place as described by appellant or

as described by the victim; whether she was asleep or

awake; whether she invited appellant into the situation;

or whether he raped her while she slept. Appellant was

not denied the opportunity to fully present his defense.

We agree with the military judge’s ruling that such evi-

dence was not relevant, material, or favorable to the de-

fense. United States v. Greaves, supra.

The decision of the United States Air Force Court of

Military Review is affirmed.

8a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

Vv.

SERGEANT Bossy L. KNox, FRO76-56-4975

UNITED STATES AIR FORCE

ACM 28628

20 April 1992

Sentence adjudged 21 October 1989 by GCM

convened at Kadena Air Base, Japan. Military

Judge: James C. Heupel.

Approved sentence: Dishonorable discharge,

hard labor without confinement for 90 days, and

reduction to E-1.

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair, Colonel Jeffrey R. Owens, Major Ronald G.

Morgan, and Captain Darla G. Orndorff.

Appellate Counsel for the United States: Lieutenant

Colonel Brenda J. Hollis and Major Paul H. Blackwell,

Jr.

Before

HODGSON, McLAUGHLIN, and JAMES

Appellate Military Judges

OPINION OF THE COURT

HODGSON, Senior Judge:

9a

This is a companion case to United States vy.

Castonguay, ACM 28758, 27 February 1992. In separate

trials, the appellant and Sergean Lucien Castonguay, were

each convicted of rape and conspiring to commit rape.

The appellant was sentenced to a dishonorable discharge,

90 days hard labor without confinement, and reduction

to E-1. The convening authority approved the sentence

as adjudged. We find no prejudicial error and affirm.

FACTS

The appellant, the prosecutrix, Theresa, and Sergeant

“Lu” Castonguay worked in the same shop at Kadena Air

Base, Japan. Theresa and Castonguay were intimately in-

volved and engaged in sexual relations on a regular basis.

The appellant and Castonguay were close friends and

confidants.

On 28 April 1989, a Friday, the appellant was sched-

uled to go TDY to the Philippines. That same date mem-

bers of his shop gathered outside Theresa’s dormitory to

celebrate the end of the week and a favorable dorm inspec-

tion. After drinking three or so beers, Theresa went to

her room for a shower. This occurred about 1900. After

her shower, the appellant invited her and Castonguay

to his room. While she was there and sitting on the

Castonguay’s lap, the appellant kept running his hands

up and down her legs. She told him to “knock it off.”

By then she was sipping on her sixth beer.

Co-workers of the appellant testified that he was in the

habit of making crude, sexually explicit remarks to

Theresa. The appellant either denied making the remarks

or contended they were said in jest. Castonguay was also

heard to say that since he was not “[sexually] satisfying

Theresa, he was going to get [the appellant] to fuck her.”

About 2245 or so, the appellant left the room. and “Lu”

joked about locking him out of his room. Later, when

the appellant returned, “Lu” picked Theresa up and car-

'

10a

ried her to the bed. He took off his clothes and began

“rolling around . . . hugging and kissing” Theresa, who

was still dressed. When Theresa looked up and saw the

appellant standing by the bed, she jumped up and left for

the bathroom. Apparently, the appellant was concerned

about where he was going to stay for the night since his

bed appeared to be occupied. Theresa said he could stay

in her room. This appeared to satisfy the appellant be-

cause he left. Theresa sat on the bed, undressed, rolled

over next to Castonguay and began “hugging and kissing”

him. She then rolled on her back and Castonguay rolled

on top of her. That’s the last thing she remembered as

She fell asleep. She does not remember having sex with

Castonguay that evening, and she thinks she would have

remembered if she had.

When she awoke she was on her stomach, and someone

was having sexual intercourse with her. There was a

comforter over her head, and “some hands were on [her]

back.” In the process of waking up, she assumed her part-

ner was Castonguay and responded for “5S to 10 seconds.”

Later, she thought “there was something funny going on,”

and looked over her shoulder and saw the appellant “hav-

ing sex with [her].” She started crying and said, “Lu,

get him the hell out of here.” The appellant withdrew

from her and jumped off the bed. As he jumped off, he

said, “Lu, we fucked up” and “Lu, we’re in trouble,” and

“Lu, I didn’t know that she didn’t know.” She heard

Castonguay say,” It’s okay, Bobby, she’ll be okay in a

minute.” She screamed for both of them to leave the room

so she could get dressed which they did. Later, the ap-

pellant approached Theresa and said, “we’re really sorry;

we’re really sorry and we feel so bad about this; we dis-

cussed it and we’re ready to face the consequences for

what we did.” She subsequently called the Rape Interven-

tion Crisis Center at the Kadena Clinic. She said she did

not consent to having sexual intercourse with the appel-

lant. |

eee Ae

lla

Theresa’s and the appellant’s testimony are essentially

in agreement as to what happened up to the point

where the appellant left to stay in her room so she and

Castonguay could continue their romantic interlude. It

is here that the two versions of the event part company.

The appellant testified that when he returned to his room

a second time, Theresa and Castonguay were naked and

he was performing cunnilingus on her. He stated he laid

down on the other end of the bed and went to sleep.

Wher he awoke sometime later, Theresa was on all fours

at the end of the bed performing fellatio on Castonguay.

Thereasa looked at him and he interpreted her “suggestive

looks and motions” as an invitation to join the sexual

encounter. He did so and had sexual intercourse with her

for “5 to 7” minutes, achieving a climax. When he with-

drew from her midway in the session, she encouraged him

to continue. He said that while Theresa made no noise

during the episode, she was awake and not asleep.

Shortly thereafter, the appellant told the court that

Theresa became upset and told Castonguay, “To get [the

appellant] the hell out of there.” The appellant indicated

that this behavior was not unusual for Theresa as she

would occasionally go “spastic like” and start “cussing”

at other people. He denied saying, “Lu, we fucked up,”

“Lu, we're in trouble,” and “Lu, I didn’t know that she

didn’t know.” He also denied saying, “We're ready to turn

ourselves in and face the consequences.” He admitted that

he and Castonguay had spoken with Theresa in an at-

tempt to find out “what her problem was?” It was during

this conversation that he said Theresa remarked, “I bet

you've done this with other girls.” The appellant main-

tained that Theresa consented to the sexual encounter and

that he and Castonguay had no agreement to engage her

in sexual relations.

The defense offered expert testimony that certain sleep

disorders could make it nossible for Theresa to have

awakered and consented to sexual inte-crourse and not

12a

remember it. It was also possible for the appellant, who

had just awakened, to have sexual relations and not re-

member all of what had taken place. However, the

existence of a sleep disorder does not explain the two

diametrically opposed versions of what happened.

Additionally, the defense tendered expert testimony

that the alleged victim did not have a post traumatic stress

disorder as the result of the events taking place on 28-

29 April 1989. The defense also offered evidence of

Theresa’s reputation for not telling the truth, and the

appellant’s reputation for truthfulness.

In rebuttal, the government established that the next

morning, Theresa, upset and crying, told a male friend

what had happened. She told him she passed out in the

appellant’s room with Castonguay and when she awoke

the appellant was on top of her. She said that when she

became awake, he got off and started apologizing. Fi-

nally, the government offered expert testimony that

Theresa did exhibit symptoms of a post traumatic stress

disorder.

SUFFICIENCY OF THE EVIDENCE

As an intermediate appellate court we have “awesome,

plenary, de novo power of review” that allows us to sub-

stitute our judgement for that of the court members. See

United States v. Cole, 31 M.J. 270 (C.M.A. 1990).

However, this prerogative is not without its limits for we

must first recognize that the trial court saw and heard the

witnesses when they initially determined controverted

questions of fact. Article 66(c), UCMJ.

Appellant defense counsel urge that we hold that the

evidence is factually insufficient to sustain a conviction

for rape and conspiracy to commit rape, or in the alterna-

tive, that we invoke this “de novo power of review” and

set aside the appellant’s conviction for each offense.

In testing for the factual sufficiency of the evidence we

must weigh the evidence of record, making allowance for

ee

l3a

not having seen and heard the witnesses and determine

for ourselves, whether the accused is guilty of the offense

alleged. United States v. Turner, 25 M.J. 324 (C.M.A.

1987). Here, the issue before the court members was

clear and succinct: Which version of the events of 28

April was to be believed—Theresa’s or the appellant’s?

In his opening statement, the trial defense counsel con-

cisely identified the paramount matter to be settled when

he observed: “[The] issue you decide is was [Theresa]

awake [when the sexual intercourse occurred] and is mak-

ing up a story or was she not awake?” Thus, the credi-

bility of each participant is the crucial factor.

Theresa’s version of what happened cannot be recon-

ciled with the appellant’s. She testified that she passed out

on a bed with her boyfriend, and when she awoke her

boyfriend had his hands on her shoulders and the appel-

lant was having sexual intercourse with her. She said she

did not consent to this. She further stated that the ap-

pellant’s reaction to her anger over what had happened

was one of concern and fear for what might happen to

him as a result of the incident. Additionally, Theresa tes-

tified that both the appellant and Castonguay expressed

remorse for what they had done and were willing to ac-

cept the consequences for their actions. That Theresa

reported what had happened shortly after it occurred is

corroboration that the members could consider in assessing

her credibility. United States v. Rodriguez, 28 M.J. 1016

(A.F.C.M.R. 1989), aff'd 31 M.J. 150 (C.M.A 1990)

The appellant, on the other hand, maintained that

Theresa was awake and freely consented to having sexual

relations with him in a group setting. He denied the

remarks attributed to him by Theresa suggesting that he

was at fault over what had occurred. He did, however,

acknowledge that Theresa had angrily confronted him

with the accusation, “I bet you’ve done this with other

girls.” This part of appellant’s testimony tends to support

Theresa’s claim that the sexual intercourse was non-

l4a

consensual—-had she consented there would no reason

to reproach him for his conduct.

Appellate defense counsel also suggest that the lenient

sentence, which included no confinement, is inconsistent

with guilt-—that the court members must have levied the

light sentence because they had a doubt that the appel-

lant was guilty of rape. We see no merit in this claim.

Just as a lengthy period of confinement is not proof of

guilt, neither is lack of the confinement consistent with

innocence.

Although Sergeant Castonguay did not testify at the

appellant’s trial, relying on his right against self-incrim-

ination, appellate defense counsel urge that we consider

an affidavit summarizing Castonguay’s testimony at his own

trial on the issue of the sufficiency of evidence in the

appellant’s court-martial. We decline to do so as a post-

trial affidavit cannot be used by this Court to support or

reverse a conviction. See United States v. Swanson, 9

U.S.C.M.A. 711, 26 C.M.R. 491 (1958); see also United

States v Ferguson, 5 U.S.C.M.A. 58, 17 C.M.R. 28

(1954).

The appellant also argues that the evidence does not

support a conspiracy between himself and Castonguay to

rape Theresa as there was no agreement to accomplish

this. An “agreement in a conspiracy need not manifest

itself in any formal words,” and the conduct of the parties

may be sufficient to show that an agreement existed.

United States v. Layne, 29 M.J. 48 (C.M.A. 1989). The

record established that the appellant and Sergeant Caston-

guay were close friends. Castonguay was heard to say

that since “he was not [sexually] satisfying Theresa, he

was going to get [the appellant] to fuck her.” The appel-

lant had earlier told co-workers that he was sexually at-

tracted to Theresa. He denied either saying the remarks

attributed to him or maintained they were said in jest. In

15a

either situation, this was a factual determination for the

members. Castonguay’s conduct in placing his hands on

Theresa’s shoulders is an indication that the two of them

were acting in concert. The same is true of Castonguay’s

attempt to calm Theresa so that perhaps the incident

would go unreported. Finally, the appellant’s assurance to

Theresa that “we’re really sorry and we feel so bad about

this” is further evidence of concerted action to accomplish

a criminal act. Thus, we conclude that a violation of

Article 81, UCMJ, was established. United States v.

Layne, supra.

Proof beyond a reasonable doubt does not mean that

the evidence must be free of conflict. United States v.

Rodriguez, supra; United States v. Elmore, 31 M.J. 678

(N.M.C.M.R. 1990). This was a vigorously fought trial.

Both sides contested every point. The members were prop-

erly instructed, and returned a verdict that established

they believed the prosecutrix and not the appellant. The

evidence supports their conclusion. We have examined

the record of trial, and like the court below, we are con-

vinced beyond a reasonable doubt that the appellant is

guilty of the offenses charged. United States v. Lips, 22

M.J. 679 (A.F.C.M.R. 1986), pet. denied, 24 M.J. 45

(C.M.A. 1987).

MIL. R. EVID. 412

Mil. R. Evid. 412 is intended to protect victims of

sexual assaults from embarrassing and degrading cross-

examination and evidence presentations that are common

to the prosecution of such offenses. Yet, this rule of evi-

dence is not an absolute bar to offering evidence relating

to the purported victim’s past sexual experience if it is

relevant and “constitutionally required.” United States v.

Hurst, 29 M.J. 477 (C.M.A. 1990).

At trial the appellant served notice under Mil. R. Evid.

412(c)(1) that he intended to “offer evidence of specific

16a

incident and reputation evidence of the [prosecutrix’s]

past sexual behavior.” The appellant claims “he thought

[the prosecutrix] was awake and by her actions was con-

senting to his advances.” Thus, evidence as to his state of

mind was constitutionally required.

In his offer of proof under Mil. R. Evid. 412(c), the

appellant stated he would testify that the prosecutrix had

the reputation of being a “bimbo” who liked to “party,”

was sexually promiscuous, and “very easy;” he had also

been told that she had taken “her top off” in a downtown

bar; several co-workers had stated to him that they had

contacted a sexually transmitted disease from her in the

fall of 1988; and that in July 1988, at a beach party, she

engaged in various sex acts in the presence of others—

the appellant was not at the party, but was told about

the incident.

The trial judge admitted some portions of the appel-

lant’s proposed testimony, but excluded any reference to

individual acts of sexual conduct by the prosecutrix. He

concluded that neither those individuals acts nor her repu-

tation, either known or believed by the appellant, had any

tendency te make the existence of any fact more or less

probable than it would without the evidence. He specifi-

cally noted that none of the sexual incidents by the prose-

cutrix involved the appellant, and the circumstances were

"-t similar to her or the appellant’s version of the events

which led to the rape charge. See United States v. Pick-

ens, 17 M.J. 391 (C.M.A. 1984).

The trial judge further held that the rejected evidence

was neither material nor relevant. We find no fault with

that ruling. The key issue in this case is clear-cut: the

prosecutrix testified she was asleep when the appellant had

sexual intercourse with her and the appellant maintained

she was a wide-awake, consenting partner in the en-

counter. The fact-finders received two distinct, and widely

17a

divergent, accounts of the event which posed a factual

issue of consent, unfettered by any true possibility of

mistake. They resolved this question of fact by believing

the victim.

The appellant sought to do what Mil. R. Evid. 412

seeks to prevent: portray an alleged rape victim as a bad

person who got no more than she deserved. A rational

inference does not arise from the willingness to engage in

sex with one person that this willingness exists with re-

spect to a different person at a different time in a differ-

ent place. United States v. Jensen, 25 M.J. 284, 290

(C.M.A. 1987) (Sullivan J., dissenting). We find no

clear abuse of discretion in the trial judge’s ruling ex-

cluding the identified portions of the appellant’s proffered

testimony. United States v. Hurst, supra.

INADEQUATE REPRESENTATION

Appellate defense counsel argue that the appellant’s

trial defense counsel was ineffective because he failed to

seek a grant of immunity for Sergeant Castonguay so that

he could be interviewed and testify at the appellant’s

trial. 7

We have said it many times but it bears repeating—

individuals convicted of. crimes tend to blame their lawyers

rather than themselves for their misfortune. To counter

this human failing, the law presumes that counsel are

effective and act only in their client’s best interests. To

rebut this presumption, one who maintains he was not

adequately represented must identify specific conduct

which is unreasonable under acceptable professional stand-

ards. United States v. Barnard, 32 M.J. 530 (A.F.C.M.R.

1990) pet. denied, 33 M.J. 484 (C.MA. 1991): United

States v. Washington, 29 M.J. 536 (A.F.C.M.R. 1989),

pet. denied, 30 M.J. 38 (C.MA. 1990).

We have examined the appellant’s complaint in con-

junction with an affidavit from his trial defense counsel.

18a

See United States v. Mays, 33 M.J. 455 (C.M.A. 1991).

This affidavit provides a logical and professionally sound

explanation as to why the appellant’s trial lawyer thought

it was not in his client’s best interest to use Castonguay’s

“self-serving, exculpatory version of the facts.” We con-

sider the appellant’s assertion of ineffective assistance of

counsel to be devoid of merit and unfounded.

INVITED ISSUE

This assigned error is resolved adversely to the

appellant.

For the reasons stated, the findings of guilty and the

sentence are

AFFIRMED.

Judges MCLAUTHLIN and JAMES concur.

[SEAL]

OFFICIAL

s/ Laura L. Green

LAURA L. GREEN

Clerk of Court

Court of Military Review

VY U.S. GOVERNMENT PRINTING OFFICE; 1994 365042 24014