# Petition for Writ of Certiorari — Knox v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1153

## Text

’ 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?

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1043%3A1. Public record. Not legal advice.