United States v. Gurney

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Chief Master Sergeant WILLIAM C. GURNEY
United States Air Force

ACM 37905 (recon)

____ M.J. ____

10 February 2014

Sentence adjudged 28 January 2011 by GCM convened at Scott Air Force
Base, Illinois. Military Judge: W. Thomas Cumbie.

Approved Sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-1.

Appellate Counsel for the Appellant: Captain Michael A. Schrama (argued);
Lieutenant Colonel Jane E. Boomer; Major Daniel E. Schoeni; and Dwight
H. Sullivan, Esquire.

Appellate Counsel for the United States: Major Charles G. Warren (argued);
Colonel Don M. Christensen; and Gerald R. Bruce, Esquire.

En Banc

ROAN, ORR, HELGET, HARNEY, HECKER, MARKSTEINER, MITCHELL, WEBER,
WIEDIE, and PELOQUIN
Appellate Military Judges

OPINION OF THE COURT
UPON RECONSIDERATION

This opinion is subject to editorial correction before final publication.

HARNEY, Senior Judge, delivered the opinion of the Court, in which ROAN, Chief Judge,
ORR, Senior Judge, HELGET, Senior Judge, MARKSTEINER, Judge, and PELOQUIN, Judge
join. WEBER, Judge, filed an opinion concurring in result, in which MITCHELL, Judge,
HECKER, Judge, and WIEDIE, Judge, join.
HARNEY, Senior Judge:

At arraignment before a general court-martial, the appellant entered mixed pleas.
The military judge accepted his pleas of guilty to: (1) seven specifications of willful
dereliction of duty by failing to maintain professional relationships; (2) one specification
of violating a lawful general regulation by using government equipment for other than
official business; (3) one specification of indecent conduct; and (4) four specifications of
adultery; in violation of Articles 92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934.
Contrary to his pleas, a panel of officers convicted the appellant of two specifications of
maltreatment of subordinates in violation of Article 93, UCMJ, 10 U.S.C. § 893.1 The
members sentenced him to a dishonorable discharge, confinement for 20 months, and
reduction to E-1. The convening authority approved only a bad-conduct discharge,
confinement for 4 months, and reduction to E-1.

On appeal, the appellant raised three issues for our review: (1) The military
judge’s denial of a requested instruction on mistake of fact as to consent as a defense to
maltreatment; (2) The sufficiency of the guilty plea to violating a lawful general
regulation; and (3) The appropriateness of the sentence. On 16 May 2013, we issued a
per curiam decision affirming the findings and sentence of the court-martial. United
States v. Gurney, ACM 37905 (A.F. Ct. Crim. App. 16 May 2013) (unpub. op.). On
23 May 2013, this Court issued an order that it was reconsidering the decision in the
appellant’s case based upon the panel composition. Notice of Reconsideration (A.F. Ct.
Crim. App. May 23, 2013). On 23 July 2013, we issued our opinion upon
reconsideration, again upholding the findings and sentence. United States v. Gurney,
ACM 37905 (A.F. Ct. Crim. App. 23 July 2013) (recon) (unpub. op.).

On 22 August 2013, the appellant requested en banc reconsideration, arguing the
Court erred in finding that mistake of fact as to consent is not an affirmative defense to
the offense of maltreatment of a subordinate. Over Government objection, we granted
the appellant’s reconsideration request and heard oral argument en banc on
13 November 2013.

We find under the facts of this case that the military judge did not err when he
declined to instruct the members that mistake of fact as to consent is a defense to
maltreatment. We further find his guilty plea to violation of a lawful general order
provident and his sentence appropriate.

1
The members acquitted the appellant of one specification of wrongful sexual contact, in violation of Article 120,
UCMJ, 10 U.S.C. § 920; and two specifications of misusing his official position, in violation of Article 134, UCMJ,
10 U.S.C. § 934.

2 ACM 37905 (recon)
 Mistake of Fact as to Consent as a Defense to Maltreatment

I. Background

The appellant was charged with, and pled not guilty to, maltreating two Senior
Airmen. Charge II, Specification 1, alleged the appellant maltreated Senior Airman
(SrA) AR (now Staff Sergeant AG)2 “by making deliberate and repeated offensive
comments of a sexual nature to her, and by pursuing a personal sexual relationship with
her.” Charge II, Specification 2, alleged the appellant maltreated SrA CH “by making
deliberate and repeated offensive comments of a sexual nature to her, by sending her
semi-nude images of [himself] to her, and by pursuing a personal sexual relationship with
her.”

The appellant argues the military judge erred by denying the trial defense counsel
request to instruct the members that mistake of fact as to consent can be a defense to
maltreatment. The Government disagrees. We hold the military judge did not err when
he denied the request to instruct the members that mistake of fact as to consent is an
affirmative defense to maltreatment of a subordinate under Article 93, UCMJ.

II. Testimony of Senior Airman AR

Both victims testified at the court-martial. SrA AR met the appellant, a Major
Command Chief Master Sergeant, in January 2008 at a private party following an event
sponsored by the Air Force Sergeant’s Association. At the time, SrA AR was assigned to
Wright-Patterson Air Force Base (WPAFB). After the party, the appellant sent her a
message at work over Instant Messenger3 and they began to chat. The topics ranged from
SrA AR asking the appellant for professional advice to talking about the appellant’s wife
and children. SrA AR explained that she had become friends with the appellant’s wife
through volunteer work and had cared for their children once or twice.

In November 2008, the appellant began to send SrA AR text messages. The text
messages started out as professional, and SrA AR testified that she viewed the appellant
as a mentor. She stated the messages from the appellant later became more flirtatious; he
told her she was pretty and attractive and stated he thought she worked out a lot. SrA AR
stated that, at first, she was flattered, and in her experience it was not “unusual for a
senior enlisted member to make borderline flirtatious comments with female airmen.” As
the texting continued, the appellant told SrA AR that she was “sexy” and would “like to
see his face between [SrA AR’s] thighs.” During one text exchange, the appellant asked

2
At the time of the offense, Staff Sergeant AG was Senior Airman (SrA) AR. By the time of trial, she had been
promoted and was married.
3
SrA AR described Instant Messenger as a chatting system available on work computers within the Major
Command (MAJCOM).

3 ACM 37905 (recon)
SrA AR if she had ever been with another woman. She replied “no” and stated the only
other time she had been asked that question she had “punched” her friend in the face.
The appellant sent SrA AR other texts of a sexual nature and called her his “fantasy girl.”
She responded to some texts, but did not, to her recollection, reciprocate the sexual
message. He also asked for photographs of her “abs” and body. Although uncomfortable
with the request, SrA AR sent him photos of her “abs” to maintain a good relationship
with him. After doing so, however, she felt guilty and ashamed. She distanced herself
from him and slowed her responses to his text messages.

During her testimony, SrA AR described one particular day in February 2009
when she was driving to meet her boyfriend for lunch. She received 8-10 text messages
and approximately 15 phone calls from the appellant during the six-minute drive from her
house to the base. Feeling aggravated, she eventually pulled over and called the
appellant. In a loud voice, she told him she did not want to talk to him anymore, to stop
texting and calling her, and to leave her “the hell alone.” As the conversation escalated,
the appellant got angry with SrA AR and said, “You know, is this how you talk to your
senior leaders? You’re cussing at me now?” She responded that he was acting “so
f***ing immature,” that she had tried to talk to him nicely but he would not listen, and so
she had to talk to him “like a little f***ing kid.” He told her she was “being really
unbecoming of an airman” and needed to stop yelling because “[h]e’s the chief.” The
conversation ended with SrA AR telling the appellant she wanted to keep their
relationship professional.4 After this exchange, the appellant stopped sending her
sexually-themed text messages.

During cross-examination, SrA AR explained that while she did not expressly tell
the appellant she was offended by his actions until that argument, she was not responding
to all his text messages. By ignoring his texts, she believed a reasonable person would
have understood she did not want to talk to him. She stated that even though she was
offended, she “played along” with the appellant’s text messages because she “didn’t want
[her] career to be hurt by burning a bridge so high up there. . . . so [she] just went along
with it.”5 She explained, “I was just trying to keep him where he knew that I wasn’t –
like he didn’t think I was mad at him or anything, that we still had a good relationship.”

III. Testimony of Senior Airman CH

4
In June 2009, SrA AR applied for the administrative assistant position in the appellant’s office. She was not
selected for the position.
5
SrA AR further explained:
You know, if you play with fire, you’re going to get burned, so I preferred not to find out what
would happen if I – if I made him mad . . . You know, at this point in my career, I wasn’t willing
to take a risk of finding out if I didn’t do what he wanted me to do what would happen, so I just
went along with it.

4 ACM 37905 (recon)
 Senior Airman CH joined the Air Force in May 2006. She met the appellant
approximately 1.5 years later in San Antonio while she was assigned to Brooks City-
Base. SrA CH knew the appellant because he became involved with their family after her
brother died during an incentive flight that crashed in Italy. In June 2009, the appellant
obtained SrA CH’s phone number from her mother. He then called SrA CH to discuss a
possible humanitarian assignment to WPAFB so she could be closer to her family,
something SrA CH wanted. During that conversation, the appellant asked if he could text
SrA CH. She agreed and started receiving texts within 1-2 hours. The texts quickly
became sexual when the appellant asked SrA CH if he could ask her a personal question
and asked what her favorite sexual position was. She did not immediately respond, but
eventually replied that she did not have a favorite position and “just loved sex.” The
appellant then proceeded to tell SrA CH his favorite sexual positions.

The texting between SrA CH and the appellant went on for months, and
sometimes SrA CH would “just delete them [text messages] as they were coming
through” because she was shocked by what the appellant was sending her. When asked
why she nevertheless responded to the texts, SrA CH explained, “Because I was really
hoping to get a humanitarian, and I didn’t want to offend him.” SrA CH sent the
appellant pictures of her face, breasts, and buttocks. When asked why, she explained,
“The chief told me if I helped him that he could help me.”

In early August 2009, SrA CH was on leave to see her family in the vicinity of
WPAFB. The appellant contacted her and asked if she would like to meet in his office to
discuss the humanitarian assignment. SrA CH agreed. Prior to the meeting, the appellant
asked SrA CH if she would like to keep the meeting “on a professional level,” and she
responded affirmatively. He invited her to meet at 0600, when no one else would be in
the office, but she declined. Instead they met around 0800-0830. Not wanting to meet
with the appellant alone, SrA CH brought her mother and nephew to the meeting.

After some time, the appellant asked SrA CH’s mother and nephew to leave the
meeting, ostensibly so he could discuss “personal information” with SrA CH. After they
left, the appellant began rubbing SrA CH’s thigh. She pulled away and they stood up.
The appellant then hugged her for approximately thirty seconds while she stood with her
hands to her sides. While hugging her, he grabbed her buttocks but she elbowed his arm
away. The appellant asked SrA CH what underwear she was wearing, tried to kiss her
(she turned her head away), and then used his hands to make an outline of his penis. He
asked if she wanted to take a picture of his penis on her cell phone, and she told him no.
The appellant then asked if she wanted to have sex with him on his desk. She asked,
“Don’t you think somebody would hear us?” and told him no. As she was leaving the
office, he told her, “I’d really appreciate it if we kept this between us two.”

After the meeting, the appellant contacted SrA CH’s mother to set up a dinner at
his house for the same night. SrA CH tried to get out of the party, including by lying to

5 ACM 37905 (recon)
her mother about being stuck in traffic. But eventually she attended the party with her
mother, father, two-year-old nephew, the appellant, his wife, and his daughters. At one
point during the party, while SrA CH was changing her nephew’s diaper, the appellant
put his hands down the back of her pants and grabbed her buttocks. She walked away to
throw away the diaper, and he blocked her return, requiring SrA CH to duck under his
arm through a doorway. Later, SrA CH chased her nephew upstairs into the appellant’s
daughter’s room. He followed her up the stairs and into the room, where he put both of
his hands on the wall above her. While SrA CH was holding her nephew, the appellant
reached down and grabbed her buttocks, and when she put her nephew down the
appellant grabbed her breast. SrA CH “was mad…[and thought] the chief could tell on
[her] face that it was unwelcomed.”

In mid-August 2009, SrA CH returned to the WPAFB area to attend a memorial
and road dedication in honor of her brother. The appellant invited her to meet him in his
office again. She told him “no,” but he continued to text her “a lot asking [her] if she was
sure” she did not want to go to his office. She continued to decline. When she attempted
to limit their text conversations, he became irritated with her and kept asking why she
was not responding to his texts. At one point, the appellant texted SrA CH asking, “Did
you go out last night, get drunk, and f*** somebody?” SrA CH replied, “Chief, I don’t
know who the f*** you think I am, but I’m not that kind of f***ing person.” He asked if
their relationship was over, and she responded, “[W]hat type of relationship are you
talking about, because I’ve always tried to keep it as a professional relationship.”

Later that month, the appellant traveled to Brooks City-Base to talk to SrA CH and
her leadership about the humanitarian assignment. He set up a meeting and told SrA CH
via email that two other Chief Master Sergeants in her chain of command would be there.
When she arrived at the meeting, however, she found herself alone with the appellant.
He asked about her mother, gave her a hug, and grabbed her buttocks. When she pulled
away, he invited her to go out for a drink. She declined. He then informed her that he
could not get her a humanitarian assignment to WPAFB, but might be able to move her to
the WPAFB area early for other reasons.

During this time, SrA CH asked the appellant on several occasions to keep things
on a professional level. In late-August or early-September 2009, the appellant began
sending her explicit text messages again. She told him to stop because a friend had seen
a text. She then stopped texting him completely. He stopped for a time, but began again
in October 2009, when CH received up to 30 texts a day. She became afraid of what
might happen and did not even leave her house when she knew he was in town. He
eventually sent her a text telling her that if she did not text him back, “he would go
through official means to get to [her].”

On cross-examination, SrA CH admitted that although the appellant sent her a text
that said “[i]f I get too flirtatious for you, tell me,” she never told him he was acting in

6 ACM 37905 (recon)
such a way. She instead stated, “I did tell him a couple times that I wanted to keep it
professional, but I did not want to offend the chief.” SrA CH felt that she had given him
the message during the meeting in his office that she did not welcome his conduct. When
trial defense counsel explored this subject, the following exchange occurred:

Q: You knew, based on your communications with the chief, sending him
these pictures and texts . . . you believed that he actually misperceived your
intentions. Is that right?

A: Yes, ma’am.

Q: So you also believed that he thought you were reciprocating when, in
your mind, you actually were not.

A: Yes, ma’am.

On re-direct examination, trial counsel attempted to clarify CH’s testimony:

Q: What did you mean . . . when you sent those photos and you said that
you thought maybe he thought you were reciprocating? . . . You thought
that he believed that you wanted that physical contact, or you thought he
thought you wanted a text?

A: Just a text.

....

Q: Why didn’t you stand up to [the appellant]?

A: Because he’s a chief.

IV. Appellant’s Confession

The appellant did not testify at trial. However, he did give a statement to the Air
Force Office of Special Investigations on 16 November 2009, which was introduced at
trial. In his confession, the appellant stated he engaged in “sexting” with SrA CH, that
she sent him pictures of her breasts and buttocks, and that he had sent her photos of
himself both nude and semi-nude. The appellant stated he knew SrA CH wanted a
humanitarian assignment, but denied telling her he had the authority to get her such an
assignment or that he expected any sexual favors from SrA CH in return for helping her.
The appellant stated he and SrA CH shared a “mutual” hug and kiss in his office and
denied ever touching her buttocks or breasts or touching her underneath her clothes. He

7 ACM 37905 (recon)
admitted that, in hindsight, he “crossed a line” and “should have seen this train wreck
coming.” The appellant did not mention his interactions with SrA AR in his confession.

V. Ruling of the Military Judge on Proposed Instruction

After the parties rested, the military judge provided them copies of the proposed
instructions he intended to provide the court members. Trial defense counsel objected
and asked the judge to instruct that mistake of fact as to consent is a defense to
maltreatment under Article 93, UCMJ. The military judge denied the defense request for
such an instruction. Noting that this is an “unsettled area of the law,” the judge reasoned
that because the offense of maltreatment is viewed objectively, consent or mistake of fact
as to consent is not controlling: “[The] response of the alleged victim to the accused’s
conduct is not controlling in determining objectively whether maltreatment occurred, and
likewise, mistakes by the superior as to the receptiveness or consent of the victim is not
controlling in determining whether the maltreatment occurred.” The military judge did,
however, instruct the members that they were to consider evidence of consent or
acquiescence of the alleged victims to the appellant’s actions: “The fact that [SrA AR]
and [SrA CH] may have consented or acquiesced does not alone prove that she was not
maltreated. It is but one factor to consider in determining whether the accused
maltreated, oppressed, or acted cruelly towards either [SrA AR] or [SrA CH].”

VI. Other Instructions

The military judge instructed the members that mistake of fact as to consent could
provide a defense to Specification 2 of Charge III, which alleged wrongful sexual contact
with SrA CH. The instruction provided:

The evidence has raised the issue of mistake of fact on the part of the
accused as to whether Senior Airman [CH] consented to the sexual contact.
Mistake of fact as to consent is a defense to the charged offense. Mistake
of fact as to consent means that the accused held, as a result of ignorance or
mistake, an incorrect belief that the other person engaging in the sexual
conduct consented.

Ignorance or mistake must have existed in the mind of the accused and
must have been reasonable under all of the circumstances. To be
reasonable, the ignorance or mistake must have been based on information
or lack of it which would indicate to a reasonable person that the other
person consented. Additionally, ignorance or mistake cannot be based on
the negligent failure to discover the true facts.

8 ACM 37905 (recon)
 Negligence is simply the absence of due care. Due care is what a
reasonably careful person would do under the same or similar
circumstances.

The prosecution has the burden of proving beyond a reasonable doubt that
the mistake of fact as to consent did not exist. If you are convinced beyond
a reasonable doubt that at the time of the charged offenses, the accused was
not under the mistaken belief that the alleged victim consented to the sexual
contact, the defense does not exist. Even if you conclude that the accused
was under the mistaken belief that the alleged victim consented to the
sexual contact, if you are convinced beyond a reasonable doubt that at the
time of the charged offense, the accused’s mistake was unreasonable, then
the defense does not exist.

During deliberations, the members asked whether, in determining consent for
purposes of wrongful sexual contact, military rank and position could be considered in
deciding whether consent was freely given. During a session to address this question, the
President of the court-martial panel also stated that the members were struggling with the
definition of “reasonable” under Article 120, UCMJ, as applied to mistake of fact as to
consent. After clarifying the issue with the President of the court-martial panel, the
military judge provided the following guidance:

I don’t know that this will satisfactorily answer your question, but I’m not
sure I can answer it any better. In order to answer that question, I think the
question that one would ask is would a reasonably prudent person under the
same or similar circumstances have believed that Senior Airman [CH]
consented. I know that’s a question. You know, is that a reasonable chief,
or is that a reasonable forty-seven year old man, or is that a reasonable man
or a reasonable woman, so you can’t answer that because who’s to say what
a – you know, that two chiefs think the same way or that two males think
the same way or that two females think the same way, so I mean it is just a
reasonably prudent person, whatever that might mean, under the same or
similar circumstances, would they have believed she consented? I’m not
sure that helps, but I think it’s probably the best I’m going to be able to do.

The military judge then provided additional guidance regarding consent, military
rank, and position for purposes of mistake of fact:

Now in answer to your question about using military rank and position.
I’m not sure this will give you an answer, but I think it’s probably the best
we can do. If the alleged victim consented to the act in question, it is not
wrongful sexual contact. The lack of consent required, however, is more
than the mere lack of acquiescence. If a person who is in possession of her

9 ACM 37905 (recon)
 mental and physical faculties fails to make her lack of consent reasonably
manifest by taking such measures of resistance that are called for by the
circumstances, then the inference may be drawn that she consented.
Consent, however, may not be inferred if resistance would have been futile
under the totality of the circumstances or where resistance is overcome by
intimidation or a reasonable fear of death or grievous bodily harm. You
may consider all of the surrounding circumstances in deciding whether
[SrA CH] consented.

There is evidence which, if believed, indicates that the accused used his
military rank and position in order to coerce [SrA CH] to consent to his
advances. You may consider this evidence in deciding whether [SrA CH]
had a reasonable belief that death or great bodily harm would have been
inflicted on her or that resistance would have been futile under the totality
of the circumstances. This evidence is also part of the surrounding
circumstances you can consider in deciding whether [SrA CH] consented to
the sexual contact.

The members acquitted the appellant of wrongful sexual contact with SrA CH, but
found him guilty of maltreatment of both SrA CH and SrA AR.

VII. Maltreatment

The propriety of a trial judge’s instruction is a question of law we review de novo.
United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011); United States v. Maynulet,
68 M.J. 374, 376 (C.A.A.F. 2010); United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F.
2001).

The offense of maltreatment under Article 93, UCMJ, requires proof of two
elements: (1) the victim was subject to the orders of the appellant; and (2) the appellant
was cruel toward, oppressed, or maltreated the victim. Manual for Courts-Martial,
United States (MCM), Part IV, ¶ 17.b. (2008 ed.). The nature of the act constituting a
maltreatment offense is defined as follows:

The cruelty, oppression, or maltreatment, although not necessarily physical,
must be measured by an objective standard. Assault, improper punishment,
and sexual harassment may constitute this offense. Sexual harassment
includes influencing, offering to influence, or threatening the career, pay, or
job of another person in exchange for sexual favors, and deliberate or
repeated offensive comments or gestures of a sexual nature.

MCM, Part IV, ¶ 17.c.(2) (emphasis added).

10 ACM 37905 (recon)
 Thus, a showing of actual physical or mental harm is not required to prove
maltreatment under Article 93, UCMJ. Rather, it is “only necessary to show, as
measured from an objective viewpoint in light of the totality of the circumstances, that
the accused’s actions reasonably could have caused physical or mental harm or
suffering.” United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002). Maltreatment,
however, is not a “strict liability offense punishing all improper relationships between
superior and subordinates.” United States v. Fuller, 54 M.J. 107, 111 (C.A.A.F. 2000),
overruled on other grounds by United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009).
“The essence of the offense is abuse of authority.” Carson, 57 M.J. at 415. An
individual of superior rank who takes advantage of that position may subject his
subordinates to maltreatment, regardless of his intent. United States v. Hanson, 30 M.J.
1198, 1201 (A.F.C.M.R. 1990), aff’d, 32 M.J. 309 (C.M.A. 1991) (mem.); see also
Fuller, 54 M.J. at 111 (noting that superior-subordinate relationships can create a “unique
situation of dominance and control.”).

Judicial consideration of maltreatment has largely focused on the legal and factual
sufficiency of the evidence or proof necessary to uphold a conviction under an objective
standard. See Carson, 57 M.J. at 415 (holding that court of criminal appeals
appropriately reviewed maltreatment conviction for legal and factual sufficiency under an
objective standard); Fuller, 54 M.J. at 111-12 (holding evidence legally insufficient for
maltreatment conviction based on consensual sexual relations); United States v. Goddard,
54 M.J. 763, 767 (N.M. Ct. Crim. App. 2000) (finding evidence legally and factually
insufficient to prove maltreatment in light of consensual sexual relationship), aff’d,
55 M.J. 149 (C.A.A.F. 2001) (mem.); United States v. Rutko, 36 M.J. 798, 801 (A.C.M.R.
1993) (finding evidence legally and factually sufficient to uphold conviction for
maltreatment when superior used his military position to induce soldiers to commit
unwanted sexual acts), abrogated on other grounds by United States v. Carson,
55 M.J. 656 (Army Ct. Crim. App. 2001); Hanson, 30 M.J. at 1201 (finding the totality of
the appellant’s actions supported his conviction for maltreatment). Neither our superior
court nor our sister service courts have squarely addressed whether mistake of fact as to
consent is a defense to maltreatment.

Maltreatment is a general intent crime. Hanson, 30 M.J. at 1201 (citing United
States v. Piatt, 17 M.J. 442, 445 (C.M.A. 1984)). A mistake-of-fact defense, when
applied to a general intent crime, has both a subjective (honest) and objective
(reasonable) prong. United States v. Hibbard, 58 M.J. 71, 72 (C.A.A.F. 2003); United
States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995). The ignorance or mistake of fact must
have existed in the mind of the appellant at the time of the offense and, based on the
totality of the circumstances, the mistake must have been reasonable. Hibbard,
58 M.J. at 72 (citing Rule for Courts-Martial (R.C.M.) 916(j)). Stated another way, the
appellant’s mistaken belief must be both subjectively honest and objectively reasonable
under the circumstances. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). Any
doubt whether an instruction should be given should be resolved in favor of the accused.

11 ACM 37905 (recon)
United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000). See also United States v.
Zachary, 63 M.J. 438, 442 (C.A.A.F. 2006) (“It is a basic principle of criminal law that
an honest and reasonable mistake of fact can negate the mens rea requirement to a
general intent crime.”).

“A military judge is required to instruct members on any affirmative defense that
is ‘in issue,’ and a matter is considered ‘in issue’ when ‘some evidence, without regard to
its source or credibility, has been admitted upon which members might rely if they
choose.’” United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) (quoting United
States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)); see also R.C.M. 920(e). Some evidence
can be raised “by evidence presented by the defense, the prosecution, or the court-
martial.” Hibbard, 58 M.J. at 73 (quoting R.C.M. 916(b), Discussion).

To resolve this issue before us, we must answer two questions: (1) whether
mistake of fact can be an affirmative defense to maltreatment under Article 93, UCMJ;
and (2) if so, whether some evidence was raised in this case that required the military
judge to instruct the members on mistake of fact as to consent as an affirmative defense.

VIII. Whether Mistake of Fact as to Consent Can Be a Defense to Maltreatment

The first question we must address is whether mistake of fact as to consent is an
affirmative defense to the offense of maltreatment under Article 93, UCMJ. The
Government argues that consent is but one factor to consider when objectively evaluating
maltreatment and that mistake of fact as to consent is not an affirmative defense. The
appellant disagrees. Both sides offer credible arguments and citations to support their
respective positions. We conclude that mistake of fact as to consent can be a defense to
maltreatment.

The appellant argues that mistake of fact as to consent is an affirmative defense to
maltreatment and that our previous decision holding to the contrary conflicts with our
superior court’s decision in United States v. Garcia, 44 M.J. 496 (C.A.A.F. 1996). In
Garcia, the appellant pled guilty to maltreatment under Article 93, UCMJ. During the
providency inquiry, the appellant stated that at the time of his various acts with two
female subordinates, he believed they had consented to his actions. Upon further
questioning, the military judge found the appellant’s pleas provident. This Court
disagreed and set aside the findings and sentence. United States v. Garcia, 43 M.J. 686
(A.F. Ct. Crim. App. 1995). In reaching this result, we noted that maltreatment must be
measured from an objective standard, and to determine if the objective standard has been
violated we “must look to all the facts and circumstances of the incidents.” Id. at 690. In
so doing, we concluded it would be “objectively unreasonable” to find the accused guilty
of maltreatment when the victim “freely and voluntarily consented” to the conduct:
“Since appellant insisted that, at the time of offenses, he thought the women were

12 ACM 37905 (recon)
consenting, the military judge should have rejected his plea” to the maltreatment
offenses. Id.

On review, our superior court ruled that the appellant’s pleas were provident. It
noted that during the providency inquiry the military judge set forth the elements of the
offenses to which the appellant offered to plead guilty and obtained the appellant’s
assurances that they accurately described what he had done. This inquiry, our superior
court observed, adequately established a factual basis supporting each element of the
offense. “Without more,” it stated, “[the appellant’s] pleas would be provident.” Garcia,
44 M.J. at 498. Our superior court recognized, however, that “there was more” because
the appellant averred that at the time of his actions he believed the victims had consented.

In addressing this issue, our superior court first stated that maltreatment is a
general intent crime, and, as such, “a successful mistake-of-fact defense must include not
only a subjective belief of consent but also a belief that was reasonable under all the
circumstances.” Id. (internal quotation marks omitted) (citing R.C.M. 916(j)). Second, it
observed that the appellant’s providency inquiry did not contain any claim that his
mistaken belief as to consent was objectively reasonable, nor did the factual
circumstances described by the appellant suggest his subjective belief was reasonable.
Id. at 498-99. Finding the appellant’s pleas provident, our superior court concluded:

In this light, we conclude that a mistake-of-fact defense was never raised by
[the appellant]. Therefore, there was no necessity for [the appellant]
expressly to disavow the objective reasonableness of his subjective belief in
order to maintain his pleas—although a more probing inquiry by the
military judge into the possibility of an affirmative defense and findings
entered by the judge on the record would have provided a record that was
free from even arguable error.

Id. at 499 (emphasis added).

Addressing Garcia, the Government argues that our superior court did not
squarely hold that mistake of fact as to consent is an affirmative defense for violations of
Article 93, UCMJ. Rather, it argues, our superior court restricted its ruling to a
providency analysis, finding no substantial basis in fact to undermine the sufficiency of
the plea. The Government further argues that, to the extent our superior court’s decision
could be interpreted to find that mistake of fact as to consent is an affirmative defense to
maltreatment, the language is non-binding dicta. The Government asserts that our
superior court did no more than “perhaps presume” mistake of fact as to consent was
relevant to the guilty plea for maltreatment without being asked to decide the predicate
question of whether mistake of fact as to consent did constitute an affirmative defense to
maltreatment. Finally, the Government argues that our superior court’s focus was limited
to the providency of the plea because The Judge Advocate General of the Air Force only

13 ACM 37905 (recon)
certified the specific question of whether this Court had erroneously decided that the
pleas were improvident.

Relying on United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), overruled on
other grounds by United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), the Government
argues the position adopted by the military judge in this case: consent is but one factor to
consider when objectively evaluating maltreatment and mistake of fact as to consent is
not an affirmative defense. Fuller involved consensual sexual relations between a
noncommissioned officer and a subordinate. The issue before our superior court was the
legal sufficiency of the evidence supporting the appellant’s conviction for maltreatment.
After viewing the totality of the circumstances from an objective viewpoint, our superior
court found the evidence legally insufficient to support the appellant’s convictions for
maltreatment. Id. at 112. The Court took into account several factors in reaching this
conclusion, such as the superior-subordinate relationship between the appellant and the
alleged victim; the consensual nature of the relationship; the lack of evidence showing
the appellant used or threatened to use his position to coerce the alleged victim into
having sexual intercourse with him; the lack of evidence of a coercive training
environment; the lack of evidence the alleged victim felt unable to resist the appellant’s
actions; and the lack of evidence showing the victim showed any visible signs of
intoxication or that the appellant knew she was intoxicated. Id. at 110-11. The
Government asserts that such a contextual analysis is proper when evaluating
maltreatment and, as in Fuller, consent in this appellant’s case was one factor to consider
in evaluating his actions. Thus, the Government argues the military judge did not err.

We find that mistake of fact as to consent can be an affirmative defense to the
offense of maltreatment under Article 93, UCMJ. We reject the Government’s argument
that our superior court’s discussion of the mistake-of-fact defense in Garcia is non-
binding dicta. We also reject the argument that Garcia is limited to the providency of the
plea because The Judge Advocate General of the Air Force only certified the specific
question of whether this Court had erroneously decided that the pleas were improvident.
To address the providency of the pleas, our superior court necessarily analyzed the facts
before it to decide if the appellant had raised a defense of mistake of fact as to consent
that rendered his pleas improvident. The analysis focused on the general intent nature of
maltreatment and the subjective and objective prongs of the mistake-of-fact defense. Our
superior court then applied the facts to the law, concluded that the appellant had not
raised the mistake-of-fact defense sufficient to satisfy the subjective and objective prongs
of the defense, and found his pleas provident.

We cannot ignore the language and analysis in Garcia on the issue of mistake of
fact as to consent as applied to maltreatment. Although Garcia did not specifically hold
that mistake of fact as to consent could be a defense to maltreatment, the language in the
opinion does not implicate dicta. Rather, implicit in the opinion is a reasonable
conclusion that the defense of mistake of fact as to consent is available to the general

14 ACM 37905 (recon)
intent crime of maltreatment. Our decision today fills the gap in Garcia by holding that
mistake of fact as to consent can be a defense to maltreatment.

IX. Whether the Military Judge was Required to Instruct on Mistake of Fact as to
Consent

Having concluded that mistake of fact as to consent can be a defense to
maltreatment, we next address whether there was “some” evidence in this case that
required the military judge to instruct the members on mistake of fact as to consent as an
affirmative defense. We answer this question in the negative.

Military judges have substantial discretionary power to decide which instructions
to give panel members. Whether a panel is properly instructed is a question of law
reviewed de novo. United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). A military
judge must instruct panel members on any affirmative defense that is “in issue.” R.C.M.
920(e)(3); Stanley, 71 M.J. at 63; United States v. Schumacher, 70 M.J. 387, 389
(C.A.A.F. 2011). “A matter is considered ‘in issue’ when ‘some evidence, without
regard to its source or credibility, has been admitted upon which members might rely if
they choose.’” United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting R.C.M.
920(e), Discussion). Relying on authority from the Supreme Court, our superior court
has stated that “‘some evidence’ entitling an accused to an instruction, has not been
presented until ‘there exists evidence sufficient for a reasonable jury to find in [the
accused’s] favor.’” Schumacher, 70 M.J. at 389 (quoting Mathews v. United States,
485 U.S. 58, 63 (1988)). The Schumacher Court further explained: “[T]he military judge
must answer the legal question of whether there is some evidence upon which members
could reasonably rely to find that each element of the defense has been established. This
test is similar to that for legal sufficiency.” Schumacher, 70 M.J. at 389-90 (emphasis
added).

R.C.M. 916(j) provides for the defense of mistake of fact:

[I]t 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 not be
guilty of the offense . . . If the ignorance or mistake goes to any other
element requiring only general intent or knowledge, the ignorance or
mistake must have existed in the mind of the accused and must have been
reasonable under all the circumstances.

Thus, the defense of mistake of fact as to consent for maltreatment, as a general
intent crime, requires a mistake that is both honest and reasonable. In this case, the
appellant must have subjectively believed that SrA AR and SrA CH welcomed his

15 ACM 37905 (recon)
conduct and there must be some evidence showing that his belief was reasonable under
the circumstances.

We find some evidence exists to show the appellant held a subjective belief that
the victims welcomed his conduct, and upon which the members could reasonably rely,
without regard to its source or credibility. For example, SrA CH testified that she
believed the appellant thought she was reciprocating his interest in their exchange of text
messages. In addition, SrA CH sent the appellant photographs of her buttocks and
breasts. And, the appellant told investigators that he believed the hug and kiss with
SrA CH in his office was mutual. Likewise, SrA AR testified that she attempted to give
the impression that his text messages did not offend her and she chose to “play along”
with the text messaging.

We do not find any evidence, however, upon which the members could rely
showing that the appellant’s belief was objectively reasonable under the facts of this case.
The appellant outranked SrA CH and SrA AR. He was an E-9 senior enlisted leader;
they were E-4 junior enlisted personnel. The appellant was a Major Command Chief
Master Sergeant; SrA CH and SrA AR were among the enlisted personnel in that Major
Command. The appellant occupied a position of authority and respect at the time he
queried these junior enlisted members about their sex lives. Moreover, the appellant
initiated the contact with both victims. In both cases, the appellant sent them sexually
explicit text messages and asked for and received nude photographs from SrA CH and
semi-nude photographs from SrA AR. Both victims testified that they did not tell the
appellant that his conduct offended them because of his position and out of concern for
their careers. Under the facts of this case, we find the appellant’s mistaken belief that
SrA CH and SrA AR consented to his conduct was not objectively reasonable.

Accordingly, we conclude that the appellant has not raised a mistake-of-fact
defense. The record does not contain “some” evidence to satisfy each element of the
defense. Thus, the military judge did not abuse his discretion when he did not instruct the
members on mistake of fact as to consent.

Even if the military judge had erred in failing to instruct the members on mistake
of fact as to consent, we are convinced that the error was harmless beyond a reasonable
doubt and did not contribute to the appellant’s conviction.

Failure to provide a required instruction is constitutional error reviewed to
determine whether that error was harmless beyond a reasonable doubt. United States v.
McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing Chapman v. California, 386 U.S. 18,
24 (1967)). The test is: “Is it clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error?” Neder v. United States, 527 U.S. 1, 18
(1999). When conducting a harmless error analysis, this Court looks at the entire record
and all the circumstances to determine “whether the error had or reasonably may have

16 ACM 37905 (recon)
had an effect upon the members’ findings.” United States v. Hall, 58 M.J. 90, 94
(C.A.A.F. 2003) (quoting United States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995)) (internal
quotation marks omitted). The Government bears the burden of showing that a
constitutional error is harmless beyond a reasonable doubt. To meet that burden, the
Government must show there is “no reasonable possibility” that the error “contributed to
the contested findings of guilty.” United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F.
2007).

The appellant relies on United States v. DiPaola, 67 M.J. 98 (C.A.A.F. 2008) to
argue that the Government cannot show that the military judge’s failure to give the
mistake-of-fact instruction was harmless beyond a reasonable doubt. In DiPaola, the
appellant and another military member had an on-again, off-again sexual relationship.
During one encounter, the appellant told the victim he wanted to have sex with her; she
said she did not want to. He persisted, but she continued to say no. Despite her
protestations, they began kissing and “making out,” eventually moving to her bed. The
victim allowed the appellant to remove her shirt, after which he began kissing and biting
her breasts. When she told him not to bite her breasts, he stopped.

The appellant then grabbed the victim’s wrists and held them down on the bed
above her head. He unzipped the victim’s pants, but she got a hand loose and pulled up
her zipper. He continued to ask for sex; she continued to say no. At one point, the
appellant offered the victim such things as marriage, children, and his car in exchange for
sex, which she found amusing. They both laughed during this exchange. The appellant
proceeded to rub the victim’s crotch area and, while clothed, rubbed his erect penis over
her clothed vaginal area. This position hurt her wrists and legs, and she finally pushed
the appellant off the bed. The appellant pulled out his penis and began stroking it with
his hand. He asked the victim for oral sex; she said no. The appellant finally understood
that she was not going to have sex with him and left the room. Id. at 100.

The appellant was charged with specifications of indecent assault and indecent
exposure. The military judge declined to give the mistake-of-fact instruction for the
indecent assault specifications (kissing and biting her breasts, holding her down by her
wrists, sitting and lying on top of her, and rubbing his erect penis against her vaginal
area), but gave the instruction for the indecent exposure specifications (removing his
penis from his pants after the events on the bed occurred). The appellant was convicted
of the indecent assault specification but acquitted of the indecent exposure specification.
Id. at 102-03. Our superior court held that the absence of the mistake-of-fact instruction
for indecent assault was not harmless beyond a reasonable doubt “because the instruction
resulted in a finding of not guilty when given with respect to another charge involving the
same victim in the same setting.” Id. at 102.

The appellant argues that DiPaola controls the outcome in this case because the
military judge instructed that mistake of fact as to consent applied to the wrongful sexual

17 ACM 37905 (recon)
contact specification that named SrA CH, but did not instruct on that defense for the
maltreatment specification that also named SrA CH. The appellant argues that both
offenses involved the same victim in the same setting, thus requiring reversal.

We agree that in this case the charges involve the same victim, SrA CH. We
disagree, however, that the charges involve the same setting. In DiPaola, the victim
consented to some, but not all of the appellant’s conduct during a single encounter
encompassing both the indecent assault and indecent exposure charges. The Court found
this “mixed message” was sufficient to raise mistake-of-fact for the indecent assault
charge. Unlike DiPaola, the appellant’s maltreatment of SrA CH consisted of facts
different than those for the wrongful sexual contact. The appellant’s maltreatment of SrA
CH involved his pursuit of the sexual relationship with SrA CH, shown by the repeated
communications via text messages (“sexting”) and him sending her semi-nude photos of
himself. Conversely, the wrongful sexual contact centered on the appellant touching the
breasts and buttock of SrA CH, and kissing her. Moreover, the time period for the
maltreatment specification covered a much broader period (on or about 1 July 2009 to on
or about 13 November 2009) than for the wrongful sexual contact specification (on or
about 1 August 2009 to on or about 31 August 2009). Although the members inquired
about how consent factored into the relationship between the appellant and SrA CH, we
do not find this to be akin to the “mixed message” scenario in DiPaola.

Moreover, the additional instructions from the military judge to the members were
limited to the Article 120, UCMJ, wrongful sexual contact specification. The trial judge
clarified with the President of the court-martial panel that their questions focused on the
issue of mistake of fact as to consent for wrongful sexual contact. The panel President
was satisfied with the additional instruction and so informed the military judge. In our
opinion, the additional instruction clearly informed the members the parameters for
considering reasonableness, military rank, and position as applied to mistake of fact for
wrongful sexual contact.

Under the unique set of facts before us, we conclude that DiPaola is
distinguishable from this case, and conclude that any error would have been harmless
beyond a reasonable doubt if the military judge erred by not giving the mistake of fact as
to consent instruction for maltreatment.

Providency of the Plea

The appellant pled guilty to violating a lawful general regulation, Air Force
Instruction (AFI) 33-119, Air Force Messaging, ¶ 3.9.1 (24 January 2005), by wrongfully
using his government computer, cell phone, and email account for other than official use.
The military judge correctly stated the elements and definitions of the offense, explained
that the AFI does not prohibit all personal communication using government resources,
and clarified with the appellant that the charged wrongful communications pertained to

18 ACM 37905 (recon)
the flirtatious and sexual communications described during the plea inquiry into the
unprofessional relationship charges. The appellant argues that the cited paragraph of the
AFI does not prohibit the charged misconduct, focusing on the AFI’s distinction between
official and authorized use.

A military judge must determine whether an adequate basis in law and fact exists
to support a guilty plea by establishing on the record that the “acts or the omissions of the
accused constitute the offense or offenses to which he is pleading guilty.” United States
v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Acceptance of a guilty plea is reviewed for
an abuse of discretion, and questions of law arising from the plea are reviewed de novo.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). We afford significant
deference to the military judge’s determination that a factual basis exists to support the
plea. Id. (citing United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)); see also
United States v. Barton, 60 M.J. 62 (C.A.A.F. 2004). Among the reasons for giving
broad discretion to military judges in accepting guilty pleas is the often undeveloped
factual record in such cases as compared to that of a litigated trial. Rejection of a guilty
plea requires that the record show a substantial basis in law and fact for questioning the
providence of the plea. Inabinette, 66 M.J. at 322; United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991).

Paragraph 3.9 of the AFI permits official and authorized use of government
communications systems. Subparagraph 3.9.1 defines official use and lists specific uses
that would not be considered official including sending “inappropriate messages to
groups or individuals.” Subparagraph 3.9.3 defines authorized limited personal use along
with examples. Violation of either subparagraph is punitive. The appellant admitted that
his use of government equipment for flirtatious and sexual communications violated
paragraph 3.9.1. His argument on appeal might have some merit if he had added during
the plea inquiry that he somehow thought these communications constituted authorized
personal use under paragraph 3.9.3. But he did not. Rather, he disclaimed any legal
justification or excuse for his actions and told the judge that the flirtatious and sexual “e-
mails, phone calls, and text messages violated the general regulation pertaining to the
approved and appropriate use of these assets.” On this record we find no substantial basis
in law and fact for questioning the acceptance of the plea.

Sentence Appropriateness

The appellant argues the approved sentence of a bad-conduct discharge and
reduction to E-1 is inappropriately severe based on (1) his prior honorable service and
(2) the relative severity of the sentence as compared to “the range of punishments
typically meted out” for similar offenses. We review sentence appropriateness de novo.
United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). We make such
determinations in light of the character of the offender, the nature and seriousness of his
offenses, his record of service, and the entire record of trial. United States v. Snelling,

19 ACM 37905 (recon)
14 M.J. 267, 268 (C.M.A. 1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim.
App. 2006), aff’d, 65 M.J. 35 (C.A.A.F. 2007). Additionally, while we have a great deal
of discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Lacy, 50 M.J. 286, 288
(C.A.A.F. 1999); United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). Applying
these standards to the present case, we do not find the approved sentence inappropriately
severe, nor do we find sentence comparison appropriate. See United States v. Christian,
63 M.J. 714, 717 (A.F. Ct. Crim. App. 2006) (citing United States v. Wacha, 55 M.J. 266,
267-68 (C.A.A.F. 2001)), aff’d, 66 M.J. 291 (C.A.A.F. 2008).

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.6 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

AFFIRMED.

WEBER, J., with whom HECKER, J., MITCHELL, J., and WIEDIE, J., join, concurring:

I agree our superior court ruled in United States v. Garcia, 44 M.J. 496 (C.A.A.F.
1996) that mistake of fact can be an affirmative defense to a charge of maltreatment.
Under Garcia, a successful mistake-of-fact defense to maltreatment must include not
only a subjective belief of consent but also a belief that was reasonable under all the
circumstances. Id. at 498. Garcia’s position is sound, since an accused who reasonably
believed he had the consent of the other party has not formed a general intent to engage
in “offensive” comments of a sexual nature. Manual for Courts-Martial (MCM), Part IV,
¶ 17.c.(2) (2008 ed.). An honest and reasonable belief that the other person has
consented to comments of a sexual nature therefore “goes to [an] . . . element requiring
only general intent or knowledge,” specifically the element that the accused was cruel
toward or maltreated the other person. Rule for Courts-Martial (R.C.M.) 916(j). Mistake
of fact as to consent can be an affirmative defense to a charge of maltreatment.

6
We note that the overall delay of over 18 months between the time the case was docketed at the Air Force Court of
Criminal Appeals and completion of review by this Court is facially unreasonable. Because the delay is facially
unreasonable, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4)
prejudice. See United States v. Moreno, 63 M.J. 129, 135-36 (C.A.A.F. 2006). When we assume error, but are able
to directly conclude that any error was harmless beyond a reasonable doubt, we do not need to engage in a separate
analysis of each factor. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). This approach is
appropriate in the appellant’s case. The post-trial record contains no evidence that the delay has had any negative
impact on the appellant. Having considered the totality of the circumstances and the entire record, we conclude that
any denial of the appellant’s right to speedy post-trial review and appeal was harmless beyond a reasonable doubt.

20 ACM 37905 (recon)
 I respectfully disagree with the majority in concluding the military judge was not
required to instruct on this defense because it was not placed “in issue” by the facts of
this case. As the majority notes, a matter is considered “in issue” when “some evidence,
without regard to its source or credibility, has been admitted upon which members might
rely if they choose.” United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting
R.C.M. 920(e), Discussion). “Any doubt whether an instruction should be given should
be resolved in favor of the accused.” United States v. Davis, 53 M.J. 202, 205 (C.A.A.F.
2000). Here, the defense of mistake of fact as to consent was raised by “some evidence.”
Most directly, SrA CH testified that she believed the appellant thought she was
reciprocating his actions. Additional evidence supporting the conclusion that the defense
was placed “in issue” includes the appellant’s statement that he believed a hug and kiss
with SrA CH were mutual, SrA CH’s texting intimate pictures of herself with the
appellant, and SrA AR’s testimony that she attempted to give the appellant the
impression his text messages did not offend her and that she chose to “play along” with
the messages. Trial defense counsel’s closing argument repeatedly asserted the two
female Airmen welcomed the appellant’s actions, as demonstrated by their text messages
to him, the pictures sent to him, their decisions to spend time with the appellant, and
similar evidence.

The majority finds the appellant’s mistaken belief that SrA CH and SrA AR
consented to his conduct was not objectively reasonable. However, that conclusion
belongs to the members, not the military judge. Questions of objective reasonableness
are normally questions of fact left to the members. See, e.g., United States v. Bellamy, 36
C.M.R. 115, 119 (C.M.A. 1966) (holding law officer erred in failing to instruct on lesser-
included offense to voluntary manslaughter, because “[w]hether a particular provocation
has spent its force and what constitutes a reasonable time for cooling are ordinarily
questions of fact for the jury; and the court cannot take it from the jury by assuming to
decide it as a question of law.”) The question facing the military judge was simply
whether the members might have relied on some evidence, however credible.

I do not believe the defense was required to separately introduce evidence of the
objective reasonableness of the appellant’s consent to trigger the instruction requirement,
as the majority requires. The majority agrees the defense elicited “some evidence” to
indicate the appellant subjectively believed SrA AR and SrA CH consented to his actions.
This same evidence also provides “some evidence” to support the objective component of
a mistake of fact as to consent defense. Our superior court has held that for a general
intent element in an indecent assault case, a mistake-of-fact defense (requiring both a
subjective belief of consent and an objectively reasonable belief) was raised by “mixed
message” evidence that the victim consented to and willingly participated in some of the
sexual acts listed in the specification. United States v. DiPaola, 67 M.J. 98, 102
(C.A.A.F. 2008). The Court held such consensual acts could be seen, in conjunction with
a past sexual relationship, as creating a “mixed message” as to which acts were
permissible and which were off-limits. Id. The DiPaola Court did not require defense

21 ACM 37905 (recon)
counsel to separately introduce evidence of the reasonableness of the appellant’s mistake
of fact, and neither should this Court.

My conclusion is reinforced by the fact that the military judge elected to instruct
the members that evidence SrA CH or SrA AR consented could be considered as a factor
in determining whether the appellant maltreated the Airmen. Military judges have
“substantial discretionary power” in deciding whether to issue instructions, but the
question of whether the military judge properly instructed the panel is a question of law
we review de novo. United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010). By
electing to give this instruction, the military judge impliedly determined consent was
placed “in issue.” If consent was placed in issue, mistake of fact as to consent was likely
to have been placed in issue as well, particularly under the facts of this case. The military
judge’s decision not to issue an affirmative defense instruction was based on his legal
determination that mistake of fact as to consent is not a defense to a charge of
maltreatment, not a subjective call as to whether the evidence raised the issue. Under a
de novo standard, I therefore would hold some evidence was introduced on the mistake of
fact as to consent issue, and the military judge was required to give the instruction.

However, I would affirm the findings and sentence based on a finding that the
military judge’s error was harmless beyond a reasonable doubt. As the majority
convincingly explains, DiPaola does not control the issue of prejudice in this case. The
members, pursuant to the military judge’s instructions, considered evidence that SrA CH
or SrA AR may have consented to the appellant’s actions, albeit not as an outright
affirmative defense. They nonetheless convicted the appellant. I see no reasonable
possibility the members would have decided any differently had they received a mistake-
of-fact instruction, particularly considering the nature of the appellant’s misconduct.

In addition, even if the error in this case was not harmless beyond a reasonable
doubt, I would reassess the sentence to the same sentence ultimately approved. The
appellant was adjudged a sentence of a dishonorable discharge, confinement for 20
months, and reduction to the grade of E-1. In a significant act of clemency, the
convening authority reduced the sentence to a bad-conduct discharge, confinement for
only 4 months, and reduction to E-1. Applying the analysis laid out by our superior court
in United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), I see no possibility the
members would have adjudged any sentence less than that approved in this case, even if
the appellant was not convicted of maltreating the two Airmen.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

22 ACM 37905 (recon)