(concurring in part and dissenting in part):
I concur in the result which the majority reaches with respect to Issues III, IV, and V. Additionally, I conclude that appellant has failed to carry his burden of showing any facts which, if true, demonstrate any actual or apparent unlawful command influence affecting his sentence.
As I read the facts and TH’s testimony differently than does the majority, I respect*96fully dissent from the reversal of appellant’s conviction for indecently assaulting TH on two occasions. The majority appears to equate TH with Ado Annie Carnes, the character in Rodgers and Hammerstein’s hit musical Oklahoma, who sings “I Cain’t Say No!” 1 Since I believe that “no” means “no,” I, like country music singer Lorrie Morgan, ask the majority, “What part of no don’t you understand?” See <http://www.country cool.com >.
SUFFICIENCY OF THE EVIDENCE
Appellant was a 28-year-old married non-commissioned officer standing six feet, four inches tall, weighing 210 pounds, with over 10 years of service at the time of trial in May 1997. The victim, TH, graduated from high school in Des Moines, Iowa, in May 1996. She went to basic training the following month and arrived at Fort Lee, Virginia, in September 1996, shortly before she was approached by appellant. At the time of trial, TH was 18 years of age.
As aptly summarized by the trial counsel in his opening statement: “This case is about a noncommissioned officer ... who chose ... to commit crimes against the most vulnerable, the most defenseless, and sadly, the most impressionable of all soldiers the Army has. He chose to commit crimes against trainees.”
While on CQ duty, appellant began flirting with the victim, contrary to regulations and despite his status as a noncommissioned officer, as well as the commander’s representative after normal duty hours. He informed TH that a movie would be shown in the company day room after bed check if she was willing to risk getting caught. After bed check (midnight), the victim left her room by a window and returned to the day room. Upon returning, appellant told TH to go to the operations room and lock the door. Once in the conference room (which adjoined the operations room), appellant began to kiss TH and felt her face, buttocks, and breasts. TH testified, “I was scared, but I wasn’t really bothered by it.” She admitted that she was a willing participant at this juncture.
After a while, appellant left the conference room, saying that he needed to go check on something at the CQ desk (a post which he presumably abandoned while having his romantic interlude with TH). When appellant returned, TH was sitting on a table in the room. Appellant started giving her a massage and told her to “lay down on the table, belly down.” TH “did as he said.” Appellant straddled the victim, continuing to massage her back, until he eventually moved her shorts and underwear, exposing her vagina. The record then discloses the following colloquy:
Q. Did you say anything to him after he did that?
A. I told him I didn’t want to have sex with him.
Q. What happened after that?
A. He continued to try to — he kept on going. I guess he thought maybe I’d change my mind or something, but I kept telling him to stop. I didn’t want to have sex with him.
Q. What was he doing exactly? What was he doing with his body?
A. He was talking to me, and I guess he was trying to have sex with me. I was telling him to stop.
Q. Did you feel anything touching you?
A. I felt it touch me.
Q. Where did you feel it?
A. Where did I feel it?
Q. Yes. What part of your body?
A. On my vagina.
Q. What part of his body was touching your vagina?
A. His penis.
*97Q. You said you told him to stop. Is that right?
A. Yes.
Q. What would he do after you told him this?
A. He would tell me to relax. I can’t remember his exact words, but basic things so I wouldn’t be so nervous and scared.
Q. How many times did he put his penis against your vagina?
A. I guess about maybe three to five times.
(Emphasis added.)
After being recalled to the stand pursuant to a court member’s request to rehear her testimony, TH again testified about the assault in the conference room:
Q. I didn’t understand your answer. Could you say that again?
A. He touched my vagina with his penis.
Q. Okay. Were you telling him anything during this?
A. I had told him to stop.
Q. After you told him that, did he ever do it again?
A. Yes, he did several times.
Q. About how many times did you tell him to stop?
A. It was probably like three to five times on an estimate.
The indecent assault in the conference room occurred when appellant continued to rub his penis against the victim’s vagina (three to five times) after being told to stop. As the majority acknowledges, TH told appellant she did not want to have sex with him but appellant “kept touching her with his penis and telling her to relax, and she told him to stop.” 54 MJ at 88. The majority concludes the victim drew the line at sexual intercourse and says appellant’s conduct “did not cross that line.” 54 MJ at 90. I disagree with the majority that the facts show, in the context of this encounter, that TH only expressed an unwillingness to have sexual intercourse. TH not only told appellant that she did not want to have sexual intercourse, but she told him pointedly to stop touching her vagina with his penis. When he failed to do so, as the evidence clearly shows, he engaged in indecently assaultive behavior. When a woman tells a would-be paramour to stop touching her body improperly, she draws the line! When the paramour persists in engaging in the same conduct that has been explicitly rejected, the paramour has crossed that line!
While I agree with the majority that TH failed to manifest any displeasure with appellant’s amorous advances during the first part of their encounter in the conference room, I disagree with the conclusion that TH consented to appellant’s heavy petting with her after his return from “checking on things at the CQ desk.” When told “no,” appellant clearly took advantage of his rank, experience, and size to continue indecently assaulting the victim after she realized that, for whatever reason, she no longer wished to be romantically involved.
Appellant was also convicted of attempting to kiss TH and attempting to touch her buttocks over her clothes. This offense occurred in the barracks latrine approximately 3 days after TH had said “no” to appellant’s advances in the conference room. Although, as the majority points out, both TH and appellant had talked to one another during the intervening 3 days, there was no evidence that TH had led appellant to believe that she wished to have any type of romantic relationship with him.
It was appellant who instructed TH to go to a female latrine (“We talked a little while and he had told me to ditch my friend and meet him up in — it was a broken down or under repair, the bathroom on the second floor. It was a female latrine.”). For safety purposes, TH took her roommate and battle buddy, PVT Perry, with her to this láteme and asked Perry to remain in a janitor’s closet nearby. After waiting for 20 or 30 minutes, appellant arrived. The transcript reveals poignantly what happened next:
Q. What happened once the accused arrived?
A. He was talking to me.
*98Q. Do you remember what kinds of things he was saying?
A. He was getting on me about talking to him at parade rest and things like respecting him as an NCO because people might start thinking something. I can’t remember everything he was saying, but that’s what I remember.
Q. Did the accused do anything to you while you were in the latrine with him?
A. He had touched my face at first, he had tried kissing me, and he had tried touching my buttocks, but I didn’t want him touching me, so I backed up.
The evidence shows that TH did nothing to lead appellant to believe that she was interested in any type of romantic relationship. In fact, she specifically stated that her feelings about appellant had changed during the intervening period between the incident in the conference room and her meeting him in the latrine. According to TH, her feelings changed because she had talked with her roommate, Perry, about the situation; had talked with her brother, who is in the military; and appellant’s supposed divorce was not yet final. Although appellant committed no further advances on TH after she stepped back from him in the latrine, his offer to kiss her and touch her buttocks, without justification, constitutes an offense under the Uniform Code of Military Justice.
Under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), I have no trouble concluding that any rational trier of fact could have found that appellant was guilty of all the elements of indecent assault in Charge III, Specification 2, and that TH did not consent to appellant’s placing his penis against her vagina. Accordingly, I would affirm appellant’s conviction of so much of Charge III, Specification 2, as finds he indecently assaulted PFC TH, a person not his wife, by placing his penis against her vagina, with the intent to gratify his lust and sexual desires. Additionally, I conclude that the evidence presented in support of Charge III, Specification 3 (the latrine incident) is sufficient to convict appellant of an assault in Violation of Article 134, UCMJ, 10 USC § 934.
MISTAKE OF FACT INSTRUCTION
“Absent plain error, failure to object to instructions as given or to request additional instructions forfeits the issue on appeal.” United States v. Guthrie, 53 MJ 103, 106 (2000), citing United States v. Maxwell, 45 MJ 406, 426 (1996); RCM 920(f), Manual for Courts-Martial, United States (1995 ed.). While, the failure to request an affirmative defense instruction is not always dispositive of the issue, no such instruction was required or even warranted in this case.
In his opening statement, defense counsel said: Members of the panel, I want to make one thing clear, exactly what the defense’s position is in this case. What the evidence will show is that the allegations of [PFC TH] and [PVT BD] are total lurid fiction. There’s no truth to them____ This is a case about whether any of this happened at all.
Appellant never testified. The defense theory was that the two victims were liars and could not be trusted. As defense counsel confirmed when affirmatively rejecting any instructions other than those given, this was an “all or nothing” case. The sum of the defense case-in-chief was a parade of witnesses who testified that the two victims lacked credibility.
As I concluded in United States v. Lee, 52 MJ 51, 53 (1999) (Crawford, J., concurring in the result): “The key to effective advocacy on behalf of one’s client ... requires the advocate to do many things ..., including making rational choices based on the unique circumstances of each case____” See also United States v. Pineda, 53 MJ 244 (2000) (Crawford, C.J., concurring in the result). Had defense counsel requested a mistake of fact instruction in this case and been refused, the military judge would have erred. Such is not the case.
Defense counsel’s declination of any honest and reasonable mistake of fact instruction was not the result of inattention to the evidence presented or lack of knowledge of the law. One must look at instructions in the *99context of the evidence presented during a court-martial. The utter absence of any notion of a mistake of fact in the defense’s case leads me to the conclusion that defense counsel, presumed competent, affirmatively waived this instruction. For counsel to have asked for such an instruction would have undermined his theory of the case (nothing happened and that TH was lying). See United States v. Taylor, 26 MJ 127, 131 (CMA 1988).
There has been no finding or even an allegation before this Court that appellant’s trial defense counsel was incompetent in selecting his theory of the case or in his trial of this court-martial pursuant to that theory.
The burden of establishing plain error lies with the appellant. United States v. Reist, 50 MJ 108, 110 (1999). Unpersuaded that the military judge committed any error in failing to instruct on the mistake of fact affirmative defense, let alone plain error, and firmly convinced that the evidence is legally sufficient to sustain this conviction, I would affirm the decision of the Army Court of Criminal Appeals.
. "It ain’t so much a question of not knowing what to do. I knowed whut’s right and wrong since I been ten. I heared a lot of stories and I reckon they are true about how girls’re put upon by men. I know I mustn’t fall into the pit, but when I’m with a feller, I fergit! I jist a girl who cain’t say no. I'm in a tumble fix. I always say 'come on, le’s go,’ jist when I orta say nix!” (Original-Text) See http://www.mbnet.mb.ca/ 'dsparkes/oklahoma/ lyrics.html.