Petition for Writ of Certiorari — Hibbard v. United States

921639 MAY 5 2003

No

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CHIEF MASTER SERGEANT BOBBY HIBBARD,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

ROBIN S. WINK

LT. COLONEL, U. S. AIR FORCE RESERVE

Counsel of Record

BEVERLY B. KNOTT KYLE R. JACOBSON

COLONEL, U.S. AIR FORCE MAJOR, U.S. AIR FORCE

Counsel for Petitioner Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL SERVICES AGENCY

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20032-8000

(202) 767-1562

May 2003

QUESTION PRESENTED

Whether a defendant is entitled to request and receive an

instruction on an alternate defense theory raised by the

evidence even though that alternate theory may be

inconsistent with the primary defense theory argued at trial.

ili

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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RPE OE BBR CA vescscvcessnesevessonnconssnsosonsesnnessceses 2

REASONS FOR GRANTING THE WRIT.............cessessseees 6

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APPENDIX A

Opinion of the United States Court of Appeals for the

Armed Forces (February 6, 2003).............:cccsssssereesesees la

APPENDIX B

Opinion of the United States Air Force Court of Criminal

Appeais (November 29, 2001) ..........sscrscessosssecesesseeness 14a

iv

TABLE OF AUTHORITIES

Page

Constitutional Provisions

LD LT ON TR OE TS, ENT Ne SEO AT 1

LEN ALT MENTE STN TIES SUA FN 1

Decisions of the Supreme Court of the United States

Mathews v. United States, 485 U.S. 58 (1988)............. passim

Stevenson v. United States, 162 U.S. 313 (1896)............... 2,6

Decisions of the U.S. Circuit Courts of Appeals

Arcoren v. United States, 939 F.2d 1235 (8th Cir. 1991) ...10

Johnson v. United States, 426 F.2d 651 (D.C. Cir. 1970) 9, 10

United States v. Browner, 889 F.2d 549 (Sth Cir. 1989) ...... 9

United States v. Demma, 523 F.2d 981 (9th Cir. 1975) ...... 10

United States v. Durham, 825 F.2d 716 (2d Cir. 1987) ........ 8

United States v. Goldson, 954 F.2d 51 (2d Cir. 1992) ........... 9

United States v. Pervez, 871 F.2d 310 (3d Cir. 1989) ......... 10

United States v. Valencia, 669 F.2d 37 (2d Cir. 1980) ........ 8

Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981) ......scsssse--- 10

Vv

Federal Statutes

Li ee. , San cece meaner E ene 1

UGE BI iiescriceesenccicnaaaiae aes 1

Petitioner, Chief Master Sergeant Bobby Hibbard,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on February 6, 2003.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, United States v. Hibbard, 58

M.J. 71 (2003), is located at Appendix A, la-13a. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals, United States v. Hibbard, ACM 34371,

2001 CCA LEXIS 304 (A.F. Ct. Crim. App. November 29,

2001), is located at Appendix B, 14a-24a.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on February 6, 2003. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1259(3) and 10 U.S.C. § 867(a)(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the

United States Constitution states that “No person shall . . . be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law.”

The Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury . . . and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him;

2 -

to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defense.”

STATEMENT OF THE CASE

This case presents the question of whether a defendant

charged with rape is entitled to an instruction on mistake of

fact as to the complaining witness’s consent even though the

defendant’s primary theory at trial was that defendant and

the complaining witness had no sexual contact. The defense

counsel requested a mistake-of-fact instruction after the

testimony of the complaining witness raised the issue of her

consent to sexual intercourse.

The Court of Appeals for the Armed Forces-—relying on

the failure of the defense to use a “mistake of fact

approach”—concluded that a mistake-of-fact instruction was

not required. By relying on the primary defense theory of

the case in this analysis, the Court of Appeals for the Armed

Forces essentially ruled that petitioner could not raise

inconsistent defenses. This holding violates petitioner’s

right to present a defense. This Court has recognized that “a

defendant is entitled to an instruction as to any recognized

defense for which there exists evidence sufficient for a

reasonable jury to find in his favor.” Mathews v. United

States, 485 U.S. 58, 61 (1988) (citing Stevenson v. United

States, 162 U.S. 313 (1896)). This principle applies even in

circumstances where the defenses raised by the evidence

may be inconsistent. Mathews, 485 U.S. at 63.

Moreover, the holding by the Court of Appeals for the

Armed Forces, requiring the defense to use a “mistake of fact -

approach,” impermissibly burdened petitioner’s presumption

of innocence and his right to have effective assistance of

counsel because petitioner was also charged with falsely

denying that he had any sexual contact with the complaining

witness, a charge to which he pled “not guilty.”

1. Facts

Petitioner, Chief Master Sergeant Bobby Hibbard, was

tried by General Court-Martial and found guilty of rape in

2000. He was also convicted of making a false official

statement when he told investigators, “I deny any sexual

contact with [Technical Sergeant I ‘lly Warner].”' App. B,

infra, 19a.

Petitioner did not testify at trial. The evidence on the

charge of rape relied predominantly on the testimony of

Sergeant Warner. The prosecution also presented the

testimony of an investigative agent who testified that

petitioner, when questioned, denied having any sexual

contact with Sergeant Warner. The events underlying the

charge occurred at an Air Force installation in the Kingdom

of Saudi Arabia. Both petitioner and Sergeant Warner were

married and away from their respective families at the time.

App. B, infra, 16a.

According to the testimony of Sergeant Warner, within a

couple of days after arriving in Saudi Arabia, she agreed to

go with petitioner to a base swimming pool at night. They

arrived at the private pool together at approximately 8:30 in

the evening. For a little over an hour, they alternated

between the swimming pool and hot tub. App. B, infra, 16a.

While they were in the hot tub the second time, Chief

Hibbard picked up Sergeant Warner’s feet and began to rub

them. Sergeant Warner said nothing in response. . He also

asked her if she trusted him. She said, “yes.” App. B, infra,

17a. Then, according to Sergeant Warner’s testimony,

petitioner stood up, came over to her, and began touching her

body all over. Sergeant Wamer said nothing in response to

petitioner’s activities. Sergeant Warner testified that Chief

Hibbard then placed his hand inside her swimsuit and placed

his finger inside her vagina. App. B, infra, 17a.

Sergeant Warner next testified that Chief Hibbard laid a

towel down beside the hot tub, and he and Sergeant Warner

' Chief Hibbard was convicted of other offenses that are not implicated in

this petition.

4

lay down together upon the towel. Sergeant Warner did not

remember how she got out of the hot tub. App. B, infra, 17a.

Additionally, Sergeant Warner thought she said, “I can’t do

this,” but was unsure whether she said this out loud or just to

herself. App. B, infra, 17a. Sergeant Warner testified that

petitioner then pulled his swimming trunks down and lay on

top of her. He tried to kiss her, but she moved her head

away. App. B, infra, 17a. He then placed his penis inside of

her vagina. Sergeant Warner testified that she was breathing

hard and started crying. App. B, infra, 17a. According to

Sergeant Warner, Chief Hibbard asked her if she wanted him

to stop, but she did not reply, only nodding her head.

Sergeant Warner admitted on cross-examination that he

might not have seen her nod. She began to breathe and cry

harder. Again, Chief Hibbard asked her if she wanted him to

stop. She responded with a “whimper,” but then said, “yes.”

Petitioner immediately stopped having sexual intercourse

with Sergeant Warner. App. B, infra, 17a.

After he stopped, petitioner and Sergeant Warner had a

brief conversation in which petitioner told Sergeant Warner

that she was a beautiful woman and that she should let “what

comes naturally happen.” App. B, infra, 17a, 18a. He also

said, “well, at least this was consensual.” App. B, infra, 18a.

At trial, the defense counsel asked the military judge to

instruct the court members on the defense of mistake of fact

as to whether the alleged acts between Chief Hibbard and

Sergeant Warner were consensual. The defense counsel

relied on Sergeant Warner’s testimony for his request,

pointing out that she equivocated in her testimony on

whether she ever said “no” to sexual intercourse and that,

according to Sergeant Warner’s testimony, at the point she

clearly communicated her desire to stop intercourse,

petitioner i1amediately stopped. Trial Rec. 654-55.

The military judge denied the request, citing the

testimony of Sergeant Warner as well as the evidence that

petitioner had denied engaging in sexual intercourse in his

statement to the investigator. The military judge further

5

noted that such a mistake of fact needed to be both “honest”

(subjective) and “reasonable” (objective). Because petitioner

did not testify at trial and the defense theory of the case was

“blanket denials of any kind of contact whatsoever” (App. A,

infra, 8a), the military judge reasoned that there was no

evidence for the court members to consider that demonstrated

a subjective or honest mistake. App. B, infra, 20a.

2. Proceedings Below

The Air Force Court of Criminal Appeals understood the

defense’s dilemma in this case. “The defense was in a

difficult position at trial. The appellant was charged with

both rape and making a false official statement to law

enforcement agents by denying ‘any sexual contact with’

[Sergeant Warner]. He could not very well advance a

mistake-of-fact defense to the rape without conceding that

his statement to law enforcement agents was false.” App. B,

infra, 19a. The Air Force Court then found that Sergeant

Warner’s testimony that petitioner had said, “well, at least it

was consensual,” was some evidence to which court

members could attach credit on the element of whether the

mistake of fact was honest. App. B, infra, 20a. Nonetheless,

the Air Force Court concluded that there was no evidence of

objective circumstances raising the mistake-of-fact defense.

App. B, infra, 20a. .

The Court of Appeals for the Armed Forces also focused

on the objective element of the test. The Court noted that in

deciding whether a mistake-of-fact instruction was required,

the court takes into account “the manner in which the issue

was litigated as well as the material introduced into evidence

at trial.” App. A, infra, 1la. The Court of Appeals noted

that the defense counsel did not connect the evidence that

petitioner had said “at least it was consensual” to his request

for the mistake-of-fact instruction as well as the fact that

defense counsel did not “seek through argument to suggest

that the case involved sexual intercourse which petitioner

believed to be consensual.” App. A, infra, 12a. The Court

6

of Appeals stated that they could “take into account the

absence of a mistake of fact approach from the defense case

when considering [the] evidence.” App. A, infra, 12a. The

Court of Appeals concluded, “the evidence cited by the

defense in light of the totality of circumstances, including the

manner that the issue was litigated at trial, was insufficient to

reasonably raise the issue of whether [petitioner] had a

reasonable belief that [Sergeant Warner] consented to sexual

intercourse.” App. A, infra, 12a-13a.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals for the Armed

Forces is in conflict with the decision of this Honorable

Court in Mathews v. United States, 485 U.S. 58 (1988).

Further, the decision of the Court of Appeals for the Armed

Forces is in conflict with the decisions of at least five circuit

courts of appeals. The decision of the Court of Appeals for

the Armed Forces conflicts with these cases because the

decision precludes instruction on one legal defense merely

because a criminal defendant also pursues a different, and

potentially inconsistent, theory of the case in his or her

defense.

The decision of the Court of Appeals that it could

consider “the manner in which the case was litigated” at trial

in determining whether the evidence raised the mistake-of-

fact defense violates petitioner’s right to present a defense as

found in the holdings of this Honorable Court. It

circumvents the notion that “a defendant is entitled to an

instruction as to any recognized defense for which there

exists evidence sufficient for a reasonable jury to find in his

favor.” Mathews, 485 U.S. at 63 (citing Stevenson v. United

States, 162 U.S. 313 (1896)). This includes circumstances

where the defenses raised by the evidence may be

inconsistent. Mathews, 485 U.S. at 66. The Court of

Appeals’ holding also violates petitioner’s presumption of

innocence and his right to have effective representation by

7

counsel by essentially requiring the defense counsel to

concede that petitioner made a false official statement when

he denied all sexual contact with Sergeant Warner in order to

assert that he may have been mistaken regarding her consent

to sexual intercourse.

More than 100 years ago this Court held that “so long as

there was some evidence upon the subject” of a defense, the

jury must be instructed to decide on that defense. Stevenson,

162 U.S. at 314, 320. The “evidence need not be

uncontradicted or in any way conclusive upon the question.”

Id. at 314.

In this case, Sergeant Warner’s own testimony raised the

issue of whether petitioner mistakenly believed that she had

consented to sexual intercourse. Sergeant Warner admitted

that she did not say “no” to the petitioner at any time and that

petitioner did not use any force or threat of force. Trial Rec.

171, 214. She testified that it was petitioner who asked

whether she wanted to stop having sexual intercourse and

upon hearing that she wanted to stop, he did so immediately.

Further, according to Sergeant Warner’s testimony,

immediately after the incident, petitioner said out loud that

their encounter was consensual.

The Court of Appeals correctly noted “[a]n honest and

reasonable mistake of fact as to the victim’s lack of consent”

is an affirmative defense to a charge of rape. App. A, infra,

3a (citations omitted). In deciding whether the evidence in

this case raised the issue of petitioner’s mistake of fact as to

whether Sergeant Warner consented to sexual intercourse,

the Court of Appeals looked at the evidence but did so only

through the prism of the defense’s presentation of the case.

The Court further observed: petitioner’s counsel did not

“seek through argument to suggest that the case involved

sexual intercourse which petitioner believed to be

consensual.” The Court focused extensively on the

defense’s presentation of the case, discussing the defense’s

8

opening state nent, closing argument,” and cross-examination

of Sergeant Warner. It is axiomatic that neither the defense

counsel’s statements, whether in opening or summation, nor

counsel’s questions to witnesses are evidence in the case.

The Court of Appeals violated this elementai principle by

focusing extensively on counsel’s conduct in evaluating the

evidence in this case. See United States v. Valencia, 669

F.2d 37 (2d Cir. 1980) (counsel’s closing argument that

defendant was not involved in drug transaction did not

preclude the assertion of dual defenses of non-involvement

and entrapment). Compare United States v. Durham, 825

F.2d 716 (2d Cir. 1987) (defense counsel’s summation not

adequate to inform a jury of what it should consider as a

legally valid defense).

The Court of Appeals for the Armed Forces further erred

in determining that the defense cross-examination of

Sergeant Warner did not raise mistake of fact as to her

consent to sexual intercourse. Defense counsel’s cross-

examination brought out many factors supporting the

mistake-of-fact defense. The defense counsel focused on

inconsistencies in Sergeant Warner’s various pretrial

statements. Counsel obtained her admissions that she never

said “no” during the encounter and that petitioner did not use

force or a threat of force during the incident. Trial Rec. 171,

214. Moreover, upon defense counsel’s cross-examination,

Sergeant Warner admitted that she did not describe the

incident as “rape” until that label was suggested by an Air

Force lawyer. Trial Rec. 207.

The Court of Appeals’ holding, by focusing on the

defense theory of the case that petitioner and Sergeant

Warner did not engage in sexual intercourse to determine

whether the evidence raised a mistake of fact as to Sergeant

Warner’s consent, prevented petitioner from raising the

? Counsel’s closing argument occurred after the military judge denied the

defense request for a mistake-of-fact instruction. Any argument

regarding mistake of fact was effectively foreclosed when the military

judge refused to give the instruction.

9

alternate defenses: 1) that he did not have sexual intercourse

with Sergeant Warner; but 2) if he did, Sergeant Warner’s

own testimony established that he mistakenly believed that

she had consented. This Honorable Court has recognized

that a defendant may present inconsistent defenses.

Mathews, 485 U.S. at 66. In Mathews, this Court resolved a

split in the circuits, holding that a defendant raising an

entrapment defense need not admit to having participated in

the underlying criminal act-even though entrapment

presupposes the commission of a crime-before asserting that

government officials induced the defendant to commit the

crime. Significantly, in Mathews, this Honorable Court

specifically observed that a defendant in a rape case is

permitted to argue that the act did not take place and that the

victim consented. Jd. at 64 (citing Johnson v. United States,

426 F.2d 651, 656 (D.C. Cir. 1970)). Yet the holding of the

Court of Appeals for the Armed Forces in this case—refusing

to instruct on the mistake of fact because the principal

defense in the case was that the act did not take place—

precluded petitioner from doing so.

The decision by the Court of Appeals for the Armed

Forces conflicts with the holdings of five circuit courts of

appeal, recognizing the principle that a defendant is entitled

to an instruction on all defenses raised by the evidence, even

if those defenses are inconsistent. “It is well established that

a criminal defendant may raise inconsistent defenses, and is

entitled to an instruction on any defense or lesser included

offense whenever there is evidence sufficient for a

reasonable jury to find in her favor, even when the defense

and lesser included offense are inconsistent with each other.”

United States v. Browner, 889 F.2d 549, 555 (Sth Cir. 1989)

(defendant entitled to jury instruction that she did not intend

to stab her husband, and, in the alternative, that she stabbed

him in self-defense). See also United States v. Goldson, 954

F.2d 51 (2d Cir. 1992) (defendant charged with assaulting a

federal officer entitled to instruction that he did not know the

victim was a federal official even though it was inconsistent

10

with his denial of throwing a brick at the officer); Arcoren v.

United States, 939 F.2d 1235 (8th Cir. 1991) (defendant

entitled to a jury instruction that he reasonably believed the

victim was at least sixteen years old, and, in the alternative,

that he had no sexual contact with her); United States v.

Pervez, 871 F.2d 310 (3d Cir. 1989) (in reversing a

conviction for entrapment, the court noted, “Mathews affords

a defendant the substantial right to plead inconsistent

defenses”); Johnson v. United States, 426 F.2d 651 (D.C.

Cir. 1970) (defendant entitled to instruction that victim may

have consented even though he argued that he had no sexual

contact with victim).

The Court of Appeals’ holding also violates petitioner’s

presumption of innocence and his right to have effective

representation by counsel by requiring the defense counsel to

essentially concede that petitioner made a false official

statement denying all sexual contact with Sergeant Warner in

order to assert that he may have been mistaken regarding her

consent to sexual intercourse. See generally United States v.

Demma, 523 F.2d 981 (9th Cir. 1975) (adherence to the rule

that a defendant must admit participation in the underlying

crime before raising an entrapment defense could create

serious constitutional problems by conditioning assertion of

a defense on the defendant’s yielding three important rights:

1) his presumption of innocence; 2) his right to remain silent;

and 3) his right to have the Government prove the elements

of the crime beyond a reasonable doubt). This put the

defense counsel in an impossible position. “Unquestionably,

the constitutional right of a criminal defendant to plead ‘not

guilty,’ or perhaps more accurately not to plead guilty,

entails the obligation of his attorney to structure the trial of

the case around his client's plea.” Wiley v. Sowders, 647

F.2d 642, 651 (6th Cir. 1981). Had the defense counsel in

this case. argued as the primary defense theory that the

evidence supported a mistake of fact as to Sergeant Warner’s

consent, he would have run the risk of ineffectively

representing the petitioner in his decision not to plead guilty

11

to the charge that he falsely denied all sexual contact with

Sergeant Warner. As in Mathews, petitioner should have

been allowed to pursue both his primary and alternate

defense theories even though those theories were potentially

inconsistent. The need for him to do so is constitutionally

compelling in this case: had the defense counsel complied

with the Court of Appeals’ decision in order to raise the

mistake-of-fact defense, counsel would have, for all intents

and purposes, conceded petitioner’s guilt as to another

charge.

CONCLUSION

The Court of Appeals’ decision in this case created a

constitutional “Catch 22” for petitioner. By focusing on the

defense theory of the case rather than the evidence presented

at trial, the Court violated petitioner’s right to present a

defense and have the jury instructed on every defense raised

by the evidence. This decision conflicts with this Honorable

Court’s decision in Mathews and the decisions of five circuit

courts of appeals. Moreover, the import of the decision by

the Court of Appeals for the Armed Forces was to require the

defendant or his counsel to concede that he was guilty of a

false official statement. Such requirement violated

petitioner’s presumption of innocence, his decision to plead

not guilty, and his right to have effective representation by

counsel. Petitioner therefore respectfully requests that this

Court grant his petition for a writ of certiorari.

Respectfully submitted,

ROBIN S. WINK

Lt. Colonel, U.S. Air Force Reserve

Counsel of Record

12

KYLE R. JACOBSON

Major, U.S. Air Force

Counsel for Petitioner

if BEVERLY B. KNOTT

Colonel, U.S. Air Force

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Services Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20032-8000

(202) 767-1562

May 2003

la

Appendix A

IN THE CASE OF

UNITED STATES, Appellee —

v.

Bobby HIBBARD, Chief Master Sergeant

U.S. Air Force, Appellant

No. 02-0231

Crim. App. No. 34371

United States Court of Appeals for the Armed Forces

Argued November 5, 2002

Decided February 6, 2003

EFFRON, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN,

JJ., joined.

Counsel

For Appellant: Lieutenant Colonel Robin S. Wink (argued);

Lieutenant Colonel Beverly B. Knott, Major Patricia A.

McHugh, and Major Jeffrey A. Vires (on brief).

For Appellee: Lieutenant Colonel LeEllen Coacher (argued);

Lieutenant Colonel Lance B. Sigmon and-Major Jennifer R.

Rider (on brief).

Military Judge: Michael J. Rollinger

2a

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one

specification each of maltreatment, rape, indecent assault,

and making a false official statement, and two specifications

alleging dereliction of duty, in violation of Articles 93, 120,

134, 107 and 92, Uniform Code of Military Justice

[hereinafter UCMJ] 10 USC §§ 893, 920, 934, 907, and 892

(2002), respectively. He was sentenced to confinement for

four years and reduction to pay grade E-4. The convening

authority approved the findings and approved a sentence of

confinement for two years and reduction to pay grade E-4.

The Court of Criminal Appeals affirmed in an unpublished

opinion.

On Appellant’s petition, we granted review of the

~ following issue:

WHETHER THE MILITARY JUDGE ERRED IN

REFUSING TO INSTRUCT THE MEMBERS ON THE

DEFENSE OF MISTAKE OF FACT AS TO THE

COMPLAINANT’S CONSENT AS RELATED TO

THE OFFENSE OF RAPE IN THE SPECIFICATION

OF CHARGE II.

For the reasons stated below, we hold that the military

judge did not err when he declined to instruct the panel of

members on the defense of mistake of fact.

~-

I. BACKGROUND

A. The Mistake of Fact Defense

Tl

3a

When an accused is charged with a crime in which

knowledge or intent is material as to an element, “it is a

defense to an offense that the accused held, as a result of

ignorance or mistake, an incorrect belief of the true

circumstances such that, if the circumstances were as the

accused believed them, the accused would be not guilty of

the offense.” Rule for Courts-Martial 916(j) [hereinafter

R.C.M.]. If the accused is charged with a general intent

offense such as rape, “the ignorance or mistake must have

existed in the mind of the accused and must have been

reasonable under all the circumstances.” Id.

Rape is a general intent offense requiring proof that an

accused deliberately or purposefully committed an act of

sexual intercourse by force and without the victim’s consent.

See Article 120(a); Manual for Courts-Martial, United States

(2002 ed.) Part IV, para. 45.b.(1) [hereinafter MCM]; United

States v. Willis, 41 M.:J. 435, 437 (1995). “[A]n honest and

reasonable mistake of fact as to the victim’s lack of consent”

is an affirmative defense to a charge of rape. United States v.

True, 41 M.J. 424, 426 (1995)(quoting United States v.

Taylor, 26 M.J. 127, 128 (C.M.A. 1988)).

The military judge is required to instruct the court-

martial panel on the availability and legal requirements of an

affirmative defense, if “the record contains somie evidence to

which the military jury may attach credit if it so desires.”

United States v. Brown, 43 M.J. 187, 189 (1995) (quoting

United States v. Simmelkjaer, 18 C.M.A. 406, 410, 40

C.M.R. 118, 122 (1969)). See R.C.M. 920(e)(3); United

States v. Davis, 53 M.J. 202, 205 (2000). An affirmative

defense “may be raised by evidence presented by the

defense, the prosecution, or the court-martial.” R.C.M.

916(b) discussion.

The defense theory at trial and the nature of the evidence

presented by the defense are factors that may be considered

4a

in determining whether the accused is entitled to a mistake of

fact instruction, but neither factor is dispositive. See United |

States v. Jones, 49 M.J. 85, 91 (1998); Taylor, 26 M.J. at

131. “Any doubt whether an instruction ‘should be given

- should be resolved in favor of the accused.’”” Brown, 43 M.J.

at 189 (quoting United States v. Steinruck, 11 M.J. 322, 324

(C.M.A. 1981)).

B. Appellant’s Trial

Appellant was prosecuted for a number of offenses,

including a charge that he raped Technical Sergeant (TSgt)

W while both were stationed in Saudi Arabia at Eskan

Village. Appellant’s defense at trial was that he did not

engage in sexual intercourse with TSgt W.

1. Defense Counsel’s Opening Statement

The central theme of defense counsel’s opening

statement was that Appellant did not engage in an act of

sexual intercourse with TSgt W. In support of this approach,

defense counsel suggested the evidence would show that

TSgt W had fabricated the rape charge. According to defense

counsel, TSgt W wanted a transfer from Saudi Arabia to the

United States. The apparent implication was that she would

receive more sympathetic consideration as a rape victim.

Defense counsel indicated the evidence would show that

TSgt W hai not wanted to leave her family in Little Rock,

Arkansas, where she had been stationed for sixteen years,

-and that she decided to accuse Appellant of rape after Staff

Sergeant (SSgt) S told her about inappropriate sexual

advances by Appellant. Defense counsel suggested the

evidence would show that TSgt W’s motive to fabricate and

the lack of medical evidence would prove that no sexual

intercourse occurred.

2. The Victim’s Testimony

5a

TSGT W was the prosecution’s primary witness. She

provided the following testimony about her interaction with

Appellant —-who was her first sergeant — in the brief period

between her arrival at Eskan Village and the incident leading

to the rape charge.

During the two days following her arrival, Appellant

provided TSGT W with an orientation — showing her around

the base, including her in social functions, and introducing

her to other Air Force personnel. In the course of these

activities, Appellant pointed out a private swimming pool,

indicating that he was allowed to bring one guest to the pool.

He told her not to tell anyone else about it.

In the afternoon of her third day at the base, Appellant

called TSgt W into his office on four different occasions,

asking her each time to accompany him to the private pool

that night. Although TSgt W repeatedly attempted to avoid

giving a direct answer, Appellant pressed her to join him,

and she eventually agreed to do so. That evening, Appellant

met TSgt W at her room, telling her that they would first go

to his apartment so that he could change into his swimsuit.

At the apartment, Appellant asked TSgt W to enter his room.

Because she was reluctant to be alone with him, she declined

to do so, and remained in the hallway while he changed.

When they arrived at the private pool, no one else was

present. TSgt W hesitated because she did not want to be

alone with Appellant, but she was also concerned about

acting in a manner that would be perceived as insulting to

her first sergeant. After Appellant prodded her, she

eventually went into the pool area, and they both entered the

pool. At the time she entered the pool, she was wearing

shorts over her swimsuit. After the pockets filled with water,

causing discomfort, she removed the shorts that covered her

swimsuit. Over the period of about an hour, Appellant and

6a

TSgt W swam and talked, spending time in both the pool and

a nearby hot tub.

While in the hot tub, Appellant asked TSgt W if she

trusted him. She replied that she did. He began to rub her

feet. A few seconds later, Appellant let go of her feet, stood

up, and “came at” her -- touching her breasts, buttocks,

- thighs, and back. After trying to kiss her, he pulled aside her

swimsuit and inserted his finger into her vagina. According

to TSgt W, this initial contact lasted “a couple of seconds,”

leaving her in shock, unable to move or speak.

Appellant then left the hot tub and spread out a towel on

the deck. TSgt W told Appellant, “I can’t do this.” She next

found herself on her back on the towel, but could not recall

the details of moving from the hot tub to the towel.

Appellant pulled down his swim trunks and “came down on

[her] really fast,” leaving her able to move only her upper

chest area and head. She struggled to turn her head back and

forth to avoid Appellant’s attempts to kiss her, which led him

to say, “come on, kiss me.” Appellant then inserted his penis

into TSgt W’s vagina.

TSgt W, who began to cry “really hard,” had difficulty

breathing. Appellant asked TSgt W if she wanted him to

stop, and she nodded an affirmative response. It is unclear

whether he saw her response, but he did not stop. When she

realized that he was not stopping, she began to cry “even

harder.” He again asked if she wanted him to stop, and TSgt

W was able to say that she wanted him to stop. Appellant

then ended the act of sexual intercourse.

After terminating the sexual activity, Appellant said:

“You are a beautiful woman and we are both adults.” He

asked her to come back to his room with him. She refused.

He said that he wanted to get to know her better, and that she

should “just let what comes natural happen” next time. He

Ta

also said that she need not worry because he had undergone a

vasectomy. As they were preparing to leave, he added:

“Well, at least this was consensual.”

3. Defense Counsel’s Cross-Examination of the Victim

The cross-examination of TSgt W by defense counsel

emphasized the defense contention that Appellant did not

engage in sexual intercourse with TSgt W. Defense counsel

highlighted inconsistencies between TSgt W’s testimony at

trial and prior statements she made to investigating

authorities. In addition, defense counsel explored TSgt W’s

unhappiness with having to leave her family. Defense

counsel did not ask any questions on cross-examination to

explore or highlight a mistake of fact defense.

4. The Defense Case

The defense case on the merits sought to bolster the

proposition that Appellant did not engage in sexual

intercourse with TSgt W. Appellant did not seek to establish

a mistake of fact defense. Defense counsel submitted twenty-

three affidavits and multiple witnesses attesting to

Appellant’s good military character, his law-abiding nature,

and his character for truthfulness. A fellow first sergeant:

testified that Appellant’s public interaction with TSgt W was

neither inappropriate or unusual. Defense counsel attempted

to discredit SSgt S’s allegations of inappropriate sexual

advances by Appellant. Defense counsel also introduced

evidence that a guard walked past Appellant and TSgt W

while they were in the hot tub, and that they had exchanged

greetings. Appellant did not testify, and the defense did not

present any other evidence of a mistake of fact defense

during its case-in-chief.

8a

5. The Request for Instructions and

Defense Counsel’s Closing Argument

Prior to closing arguments, defense counsel moved for a

mistake of fact instruction. Defense counsel’s argument in

favor of the instruction addressed TSgt W’s remarks and

actions towards Appellant, suggesting that the record was

unclear as to whether TSgt W “communicated her non-

desire” to Appellant. Defense counsel did not cite or rely

upon that aspect of TSgt W’s testimony stating that after the

act was completed, Appellant said: “Well, at least this was

consensual.” Likewise, defense counsel did not contend that

TSgt W affirmatively had indicated a desire to engage in

sexual intercourse. The military judge denied the motion,

taking note of TSgt W’s testimony that Appellant had rushed

toward her, pinned her down, left her in a state of shock, and

did not ask if she wanted him to desist until after the act of

penetration. The military judge, observing that the mistake of

fact defense requires both an honest and a reasonable belief,

held that there was not enough evidence to warrant an

instruction. He specifically relied upon TSgt W’s description

of the incident and the defense theory of the case, which he

described as “blanket denials of any kind of contact

whatsoever[.]”

Defense counsel’s closing argument concentrated on the

defense theory that Appellant had not engaged in sexual

intercourse with TSgt W. Counsel did not ask the members

to consider that Appellant might have mistakenly believed

that TSgt W consented to sexual intercourse, but simply took

note of the Government’s burden to prove “lack of consent”

and contended that the Government could not do so beyond a

reasonable doubt.

9a

II. Discussion

The issue of whether a jury was properly instructed is a

question of law, which we review de novo. United States v.

McDonald, 57 M.J. 18, 20 (2002). Even if not requested by

the defense, a military judge has a sua sponte duty to give

certain instructions when reasonably raised by the evidence,

including a defense instruction as to the affirmative mistake

of fact defense. See id.; R.C.M. 920(e).

In the present case, the military judge concluded, as a

matter of law, that there was insufficient evidence of a

reasonable and honest belief to require a mistake of fact

instruction. The Court of Criminal Appeals suggested there

was some evidence that Appellant had an honest belief as to

consent. The court observed, however, that it was “difficult

...t0 imagine any court members attaching any credit” to the

' evidence. United States v. Hibbard, No. ACM 34371, slip

Op. at 5 (A.F. Ct. Crim. App. Nov. 29, 2001). The court

concluded, as a matter of law, that there was insufficient

evidence of a reasonable belief to require an instruction. Id.

For the reasons set forth below, it is appropriate to focus on

the point of agreement between the military judge and the

Court of Criminal Appeals — that the evidence did not

reasonably raise the issue of whether Appellant had a

reasonable but mistaken belief as to consent. Because we

conclude that the military judge did not err in this regard, we

need not address aspects of the ruling by the military judge

or the opinion by the court below citing other reasons for

declining to give the instruction.

On appeal, Appellant suggests that the following factors

support a mistake of fact instruction: (1) TSgt W willingly

accepted Appellant’s invitation to join him at night in a

private swimming pool; (2) she accepted a foot rub from

Appellant; (3) when Appellant engaged in sexual touching,

she did not tell him that she wanted him to stop; (4) they

10a

both got out of the tub and laid down on a towel and had

sexual intercourse; (5) during intercourse, Appellant received

“mixed signals” in the form of heavy breathing and crying;

and (6) when he asked her after penetration if she wanted

him to stop, he may not have perceived her first response,

but when he asked again and she said “Yes” he stopped. In

addition, as noted by the Court of Criminal Appeals, at the

end of the incident appellant said, “Well, at least this was

consensual.” Jd.

The test for determining whether an affirmative defense

of mistake of fact defense has been raised is whether the

record contains some evidence of an honest and reasonable

mistake to which the members could have attached credit if

they had so desired. R.C.M. 916(j); Davis, 53 M.J. at 205. In

the present case, as noted above, our focus is limited to the

“reasonable mistake” prong of the test. Therefore, in

determining whether the factors cited by Appellant

reasonably raised the defense of mistake of fact, we consider

whether the record contains some evidence of a reasonable

mistake to which the members could have attached credit if

they had so desired. In doing so, we consider the totality of

the circumstances at the time of the offense. Key

circumstances in this case include: (1) the fact that Appellant

had a supervisory relationship with TSGT W, and a

responsibility to orient her to her new duty station; (2) his

use of the official duty environment to press her to join him

at the swimming pool that evening; (3) her manifest

discomfort, as reflected in her repeated efforts to avoid his

invitation to join him in the swimming pool, her

unwillingness to enter his apartment, and her hesitancy to

enter the pool until prodded by him; (4) his insistence that

she respond to a question about trust as a predicate for giving

her a foot rub; (5) his sudden rush at her, followed by

_ aggressive sexual touching; (6) her statement that this put her

in a state of shock; (7) the absence of any evidence that she

—

ee

lla

responded positively to his aggressive sexual touching; (8)

her repeated attempts to avoid his kisses; and (9) his use of

his body weight to restrict her upper body movements.

In our consideration of whether a mistake of fact

instruction is required, we take into account the manner in

which the issue was litigated as well as the material

introduced into evidence at trial. See, e.g., United States v.

Peel, 29 M.J. 235 (C.M.A. 1989).

As noted by the military judge in the present case,

defense counsel concentrated throughout the trial on the

theory that Appellant had not engaged in sexual intercourse

with TSgt W. Defense counsel steadfastly adhered to the

theory of no sexual intercourse in his opening statement,

during his cross-examination of TSgt W, in the presentation

of defense evidence, and in his closing argument.

With respect to cross-examination, defense counsel’s

approach to the prosecution’s key witness, TSgt W, is

informative — particularly because Appellant, at trial and on

appeal, has relied on her testimony as the basis for the

instruction. At best, TSGT W’s testimony described a

situation that the defense might have explored in greater

detail to reasonably raise a mistake of fact. Such an

approach, however, would have entailed an element of risk,

because the cross-examination might have produced

testimony that more firmly demonstrated an absence of

consent. The fact that such an approach would have been

risky, however, does not mean that the defense could leave

the details unexplored and then expect to receive a mistake

of fact instruction. Without such exploration, TSGT W’s

testimony did not describe a situation that reasonably raised

a mistake of fact as to her willingness to engage in sexual

intercourse.

12a

In the present case, defense counsel made no attempt on

cross-examination of TSgt W to explore and develop

grounds for a mistake of fact. Instead, counsel used cross-

examination to highlight inconsistencies and establish

motive in an attempt to bolster his own theory that no sexual

intercourse occurred. See Jones, 49 M.J. at 90.

Although it is not necessary to present evidence of a

mistake of fact in the defense case on the merits or to discuss

such evidence in closing argument in order ‘to obtain an

~ instruction in a proper case, see, e.g., United States v. Sellers,

33 M.J. 364, 368 (C.M.A. 1991), it is appropriate for an

appellate court to take into account the absence of such a

presentation in assessing the significance of the evidence.

We note that TSgt W’s testimony regarding Appellant’s |

remark -- “Well, at least this was consensual” — was treated

at trial as an isolated remark unconnected to specific

evidence of Appellant’s understanding or intent. Defense

counsel did not seek to connect it to any other evidence at

trial, nor did defense counsel seek through argument to

suggest that the case involved sexual intercourse which

Appellant believed to be consensual. Although the defense

presentation at trial is not dispositive in determining what

affirmative defenses have been reasonably raised by the

evidence, we may take into account the absence of a mistake

of fact approach from the defense case when considering

evidence such as TSGT W’s testimony about Appellant’s

parting remark. See Taylor, 26 M.J. at 131. In that context,

Appellant’s cursory parting remark -- that “at least” the act

was consensual — need not be viewed as anything more than

an after-the-fact attempt to recast unpleasant circumstances

in a favorable light. Cf United States v. Buckley, 35 M.J. 262

(C.M.A. 1992)(appellant’s remark to victim that he thought

she was awake did not raise mistake of fact as to consent).

In summary, the evidence cited by the defense in light of

the totality of the circumstances, including the manner that

13a

the issue was litigated at trial, was insufficient to reasonably

raise the issue of whether Appellant had a reasonable belief

that TSgt W consented to sexual intercourse.

III. Conclusion

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

14a

APPENDIX B

UNITED STATES AIR FORCE COURT OF CRIMINAL

APPEALS

UNITED STATES

V.

Chief Master Sergeant BOBBY HIBBARD

United States Air Force

ACM 34371

29 November 2001

Sentence adjudged 5 May 2000 by GCM convened at Nellis

Air Force Base, Nevada. Miéilitary Judge: Michael J.

Rollinger.

Approved sentence: Confinement for 2 years and reduction to

E-4,

Appellate Counsel for Appellant: Colonel James R. Wise,

Lieutenant Colonel Timothy W. Murphy, and Major Jeffrey

A. Vires.

Appellate Counsel for the United States: Colonel Anthony P.

Dattilo, Major Lance B. Sigmon, Major Eric D. Placke, and

Captain Christa S. Cothrel.

Before

YOUNG, BRESLIN, and HATTRUP

Appellate Military Judges

OPINION OF THE COURT

15a

YOUNG, Chief Judge:

Court members convicted the appellant of maltreating,

raping, and indecently assaulting Technical Sergeant (TSgt)

W, being derelict in the performance of his duties by

attempting to kiss Staff Sergeant (SSgt) S and TSgt K, and

making a false official statement. Articles 93, 120, 134, 92,

and 107, UCMJ, 10 U.S.C. §§ 893, 920, 934, 892, 907. The

court members sentenced him to confinement for 4 years and

reduction to E-4. The convening authority approved the

reduction, but reduced the period of confinement to 2 years.

The appellant’s counsel assign three errors: (1) The military

judge refused to give the defense requested mistake of fact

instruction as to the rape and indecent assault specifications;

(2) The military judge erred by instructing the members the

maximum sentence to confinement was life without parole;

and (3) The staff judge advocate (SJA) was disqualified from

acting on the case. In addition, the appellant has raised

several issues pursuant to United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982). We affirm.

I. Mistake of Fact Instruction

Prior to argument on findings, the trial defense counsel

asked the military judge to give a mistake of fact instruction

with regard to the specifications alleging the appellant raped

and committed an indecent assault on TSgt W. The military

judge refused. Although he recognized that the appellant did

not have to testify to raise the issue, the military judge found

no evidence to which the members could attach credit that

the appellant honestly believed that she consented to sexual

intercourse. He also believed that, in light of the defense’s

utter rejection of the notion that the appellant had sex with

TSgt W, such an instruction would confuse the members.

16a

A. Facts

The appellant was the first sergeant for the 320th Air

Expeditionary Group, Eskan Village, Kingdom of Saudi

Arabia. TSgt W was assigned to work in the Group

command section. When TSgt W arrived at the installation,

the appellant took an immediate interest in her. Despite the

fact that she had a sponsor, he volunteered to show her

around the base. After the tour, the appellant told TSgt W

that he would pick her up for dinner at her villa and show her

where the dining facility was located. Instead, he took her to

a party hailing recent arrivals and bidding farewell to those

departing the installation. The following day, the appellant

invited TSgt W to an ice cream social held at the base

chapel. After the social, he showed her more of the base and

asked her if she was having marital problems. The appellant

showed her a swimming pool to which he claimed he had

special access. He told TSgt W that if she went to the main

pool the men there would “hit on her,” whereas, if she hung

around him, no one would bother her because he was “the

Chief.”

On several occasions the following day, the appellant

called TSgt W into his office. He wanted to take her to the

special pool, but she kept stating that she was not sure if she

would go with him. She eventually agreed to go. The

appellant also showed TSgt W pictures of his new house in

the United States and suggested that his wife might not be

moving in with him.

That night, about 2030, when it was dark, the appellant

and TSgt W went to the pool. After swimming around for

15-20 minutes, they went into the hot tub. From the hot tub

they returned to the pool and then back into the hot tub.

They talked mostly about their families. TSgt W began to

feel relaxed and thought she would finally be able to sleep

ane.

17a

through the night—she had not slept well since her arrival.

The appellant asked her if she trusted him. She said she did.

He then picked up her feet and began to rub them. A few

seconds later, apparently without any warning, the appellant

stood up, rushed TSgt W, and touched her breasts, buttocks,

thighs, and back. He tried to kiss her, but she avoided him.

He then pulled aside her swimsuit and inserted a finger into

her vagina. The appellant then got out of the hot tub and laid

a towel on the ground. TSgt W said, “I can’t do this,”

although she could not remember if she said it out loud. The

“next thing [TSgt W] knew [she] was laying on [her] back on

the ground.”

TSgt W does not remember how she got from the hot tub

to the towel, but she remembers the appellant straddling her

with his knees, pulling down his swim trunks, and laying his

full body weight on top of her so she could only move her

upper body and head. The appellant tried to kiss her, but she

was able to move her head from side-to-side far enough to

avoid his lips. He told her, “Come on, kiss me,” but she

continued to move her head so that he could not do so. She

was crying and having a hard time breathing because of the

appellant’s weight. The appellant moved her swimsuit aside

and inserted his penis into her vagina. TSgt W continued to.

cry and the appellant eventually asked her if she wanted him —

to stop. She nodded her head “yes,” but was unsure whether

he saw her. Despite the continued crying, the appellant did

not stop. Some time later he again asked if she wanted him

to stop. TSgt W whimpered that she did and the appellant

stopped.

- After he stopped, the appellant asked TSgt W to go to his

room. She said she could not. He told her that the next time

it happened, she should just let “what comes naturally

happen.” TSgt W continued to cry. The appellant told her

that she did not have anything to worry about because he had

18a

had a vasectomy. He then said, “Well, at least this was

consensual.” As they left the pool to return to their villas,

the appellant said, “You are a beautiful woman and we are

both adults.”

The area surrounding the pool was flanked by villas. At

some time while the appellant and TSgt W were at the pool,

someone walked by the pool area outside the gate on the

sidewalk. The appellant exchanged a greeting and a wave

with him. TSgt W also observed a man turn the light on in a

room in one of the villas.

TSgt W did not report the incident for three days—auntil

SSgt S questioned her about her distraught condition. A rape

protocol was performed, evidence was seized from the

appellant’s villa, and DNA tests were performed. However,

except for a small bruise on TSgt W’s arm and a mild

inflammation of her vaginal wall that could not be attributed

to an infection, no corroborative evidence was discovered.

When the appellant was interviewed about the offenses, he

denied any sexual contact with TSgt W.

B. The Law

The offense of rape under Article 120(a), UCMJ, is a

general-intent offense requiring proof that the accused

deliberately or purposefully had sexual intercourse with the

victim by force and without her consent. United States v.

Willis, 41 M.J. 435, 437 (1995). An honest and reasonable

mistake on the part of the accused as to the consent of the

victim is a valid defense to rape. Jd.

A military judge is required to appropriately instruct the

court members on special, or affirmative, defenses

“reasonably raised by the evidence.” United States v.

McDivitt, 41 M.J. 442, 443 (1995) (quoting United States v.

19a

Tatum, 36 M.J. 302, 304 (C.M.A. 1993)). Accord United

States v. Davis, 53 M.J. 202, 205 (2000). A defense is

reasonably raised if there is “some evidence to which the

military jury may attach credit if it so desires.” United States

v. McMonagle, 38 M.J. 53, 58 (C.M.A. 1993). “Any doubt

whether an instruction should be given should be resolved in

favor of the accused.” Davis, 53 M.J. at 205. See Rule for

Courts-Martial (R.C.M.) 920(e), Discussion.

C. Discussion

The defense was in a difficult position at trial. The

appellant was charged with both rape and making a false

official statement to law enforcement agents by denying “any

sexual contact with” TSgt W. He could not very well advance

a mistake of fact defense to the rape without conceding that his

statement to law enforcement agents was false. The appellant

never testified. In both the opening statement and the closing

argument, the trial defense counsel argued that the evidence

was insufficient to convict because of inconsistencies in the

evidence, the improbability of the victim’s story, and the fact

that the appellant was a truthful and honorable man. He

insisted that to have sexual intercourse in such a public place

under the circumstances of the case was stupid and that the

appellant was certainly not a stupid man. Although the

defense counsel never conceded that the appellant had any

sexual contact with TSgt W, he, nevertheless, requested a

mistake of fact instruction.

The appellant was not entitled to a mistake of fact

instruction unless it was reasonably raised by the evidence.

There is no requirement that an accused must testify in order

raise this defense. See United States v. Jones, 49 M.J. 85, 91

(1998). “A defense may be raised by evidence presented by

the defense, the prosecution, or the court-martial.” United

States v. Taylor, 26 M.J. 127, 131 (C.M.A. 1988). However,

20a

the defense is not raised unless there is some evidence (1) of

objective circumstances upon which a reasonable person might

rely to infer consent, and (2) the appellant actually or

subjectively inferred consent based on these circumstances.

See Willis, 41 M.J. at 438.

The military judge denied the requested instruction. It

appears the basis for his decision was that such an instruction,

under the circumstances, would be confusing to the court

members—the appellant had denied sexual ‘contact with TSgt

W when interviewed and the appellant’s counsel was arguing

that sexual contact never occurred—and because there was no

evidence the appellant honestly believed TSgt W was

consenting.

We find there was some evidence from which court

members could attach credit, if they desired, that the appellant

honestly believed the sexual contact with TSgt W was

consensual. After the intercourse, the appellant asked TSgt W

to accompany him back to his room and said, “Well, at least

this was consensual.” Although it is difficult for us to imagine

any court members attaching any credit to this statement under

the circumstances, they could do so, if they desired. However,

there is no evidence of objective circumstances from which

reasonable court members could infer that TSgt W coisented

to either the indecent assault or the rape. No reasonable court

member would conclude that permitting the appellant to rub

her feet was a green light for the appellant to touch her breasts,

thighs, and buttocks, and to penetrate her vagina with his

finger while she was avoiding his kisses. No reasonable court

member would conclude that a crying woman who is trying to

avoid being kissed is signaling her consent to sexual

intercourse. The evidence did not raise the mistake of fact

defense.

2la

II. Sentencing Instruction

Without objection, the military judge advised the court

members that the maximum sentence to confinement was life

without eligibility for parole. The appellant contends this was

error.

A court-martial may adjudge a sentence of confinement for

life without: eligibility for parole in any case in which

confinement for life may be adjudged. Article 56a, UCMJ, 10

U.S.C. § 856a. However, a court-martial may not adjudge a

sentence that exceeds “such limits as the President may

prescribe for the offense.” Article 56, UCMJ. The appellant

contends that life without the eligibility for parole is not an

authorized punishment for rape until the President specifically

adopts it.

At the time the appellant was convicted, the President had

set the maximum punishment for rape as “[d]eath or such other

punishment as a court-martial may direct.” Manual for

Courts-Martial, United States, Part IV, J 45(e)(1) (1998 ed.).

Life without eligibility for parole is a lesser sentence than

death. Although the case was referred to a court that was not

authorized to adjudge death, neither the President nor the

convening authority limited the sentence to life imprisonment

with the possibility of parole. Therefore, the military judge

was correct in holding that life without parole was an

authorized punishment for rape.

Regardless, the appellant failed to demonstrate any

prejudice. Article 59(a), UCMJ, 10 U.S.C. § 859(a). The trial

counsel argued for confinement for 10 years, the court

members adjudged 4 years, and the convening authority

reduced it to 2 years.

22a

Ill. The Staff Judge Advocate

The appellant asserts that the SJA “should have recused

himself’ from preparing the staff judge advocate’s

recommendation (SJAR) because of his partiality.

Specifically, the appellant alleges as follows: (1) Prior to the

preferral of charges, the SJA told the appellant’s commander

that he thought the appellant was guilty; and (2) In his

addendum to the SJAR, the SJA incorrectly claimed the trial

defense counsel did not attach recordings of the trial

proceedings to his clemency matters.

Before the convening authority can act on the findings and

sentence of a general court-martial or a special court-martial

which adjudged a bad-conduct discharge, the convening

authority must obtain the written recommendation of his staff

judge advocate. Article 60(d), UCMJ, 10 U.S.C. § 860(d).

No person who has acted as member, military

jidge, trial counsel, assistant trial counsel,

defense counsel, assistant defense counsel, or

investigating officer in any case may later act

as a staff judge advocate or legal officer to any

reviewing authority upon the same case.

Article 6(c), UCMJ, 10 U.S.C. § 806(c). The purpose of this

provision is to “assure the accused a thoroughly fair and

impartial review” United States v. Coulter, 14 C.M.R. 75, 77

(C.M.A. 1954). An SJA is also disqualified if he has “other

than an official interest” in the case. United States v. Sorrell,

47 M.J. 432, 433 (1998). The phrase “‘other than an official

interest’ means a personal interest or feeling in the outcome of

a particular case.” Jd. (citing United States v. Rice, 33 M.J.

451 (C.M.A. 1991)). The appellant has the burden of

establishing a prima facie case against the SJA. United States

v. Wansley, 46 M.J. 335, 337 (1997).

23a

_ The only evidence the appellant musters in support of his

first contention is an unsworn letter from his commander that

was part of the appellant’s clemency submission. In the letter,

the commander alleges that the SJA told her before the Article

32 hearing that he thought the appellant was guilty. The

commander’s letter does not fully explain the context in which

the SJA made his comments. However, we note that this

commander’s objectivity is open to question. In the letter she

submitted, she appears to attribute her mother’s recovery from

two serious illnesses to the appellant’s intercession—he

convinced two church congregations to pray for her mother’s

speedy recovery.

A convening authority functions in different ways. “In

referring a case to trial, a convening authority is functioning in

a prosecutorial role. In stark contrast, when he is performing

his post-trial duties, his role is similar to that of a judicial

officer.” See United States v. Fernandez, 24 M.J. 77, 78

(C.M.A. 1987) (citations omitted). Likewise, the SJA

functions in several different capacities.

The SJA is the chief legal officer for the command and

primary legal advisor to the convening authority. He must

tailor his advice to the function being performed by the person

he is advising. At times, the SJA advises officials functioning

in an investigative or prosecutorial capacity: e.g., when he

advises law enforcement officials on whether they have

sufficient evidence to seek a search authorization or warrant,

when he advises a commander on whether the evidence is

sufficient to bring a case to trial and which charges to prefer;

when he advises the convening authority on _ the

appropriateness of referring a case to trial and the appropriate

forum to hear the charges; and when he supervises the

personnel who will prosecute the case in court. At other times,

he advises officials functioning in more of a judicial capacity:

24a

e.g., when advising the convening authority on the results of a

trial, and recommending an appropriate action.

The appellant failed to establish a prima facie case that the

SJA was disqualified. | We find nothing strange or

inappropriate about the SJA advising a commander that the

evidence is sufficient to establish an accused’s guilt. The

appellant failed to establish that the SJA’s comments

demonstrated a personal interest or bias against him.

The appellant’s second contention is that the SJA was

disqualified because of his material dispute with the defense

counsel, over whether copies of the tapes recording the court-

martial proceedings were attached to the defense response to

the SJAR. This is not a material dispute that demonstrates a

bias on the part of the SJA against the appellant. Although the

tapes may have been attached when the defense counsel

submitted the response to the staff judge advocate’s

recommendation, they may not have been attached when the

SJA reviewed them. Regardless, the convening authority was

provided with a copy of the recordings from the appellant’s

court-martial. However, we note that the recordings were not

attached to the record of trial when it arrived at this Court.

Although on appeal no issue was raised as to the fairness of the

military judge, the tapes still should have accompanied the

record of trial.

IV. Conclusion

We have considered the errors personally assigned by the

appellant pursuant to Grostefon and find them to be without

merit.

The findings are correct in law and fact, and no error

prejudicial to the appellant’s substantial rights occurred. The

record is returned to The Judge Advocate General for inclusion

25a

of the tapes with the record of trial. The case need not be

returned to this Court unless further review is required. The

findings and sentence are

AFFIRMED.