Opinion of the Court
COX, Judge:
Appellant was tried by general court-martial composed of a military judge alone on December 9-10, 1983, at Royal Air Force Alconbury, England. Contrary to his pleas, he was found guilty of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. He was sentenced to a dishonorable discharge, 11 months’ confinement, total forfeitures, and reduction to E-l. The convening authority reduced the dishonorable discharge to a bad-conduct discharge and then suspended the discharge but otherwise approved the adjudged sentence. The Court of Military Review affirmed. 19 M.J. 595 (1984).
This Court granted review on the following issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED IN ALLOWING HEARSAY TESTIMONY FROM AIRMAN GOMEZ REGARDING STATEMENTS MADE TO HIM BY AIRMAN PASETTI, THE ACCUSED’S ROOMMATE.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY ADMITTING IN EVIDENCE THE ACCUSED’S TESTIMONY FROM THE CASE OF UNITED STATES V. PASETTI, AND THE ACCUSED’S PRIOR WRITTEN STATEMENT WITHOUT ADEQUATE CORROBORATION.
[266]*266This case arose out of a card game in appellant’s barracks room. Appellant, Airman Lawrence Pasetti, Airman Otis Hawks, the alleged victim, and another female were playing a game where the loser of each hand of cards was required to take a drink of bourbon. A stipulation of fact stated that the group had drunk more than a quart of bourbon during the card game. The victim testified that she remembered the end of the game; she remembered waking up in a bed with an airman named Hawks; she remembered having intercourse with Hawks; and she felt that she had had intercourse with Pasetti, but she could not recall having had intercourse with appellant.
To prove the charged offense, the prosecution called Airman Vincent Gomez, who testified over defense objection to certain statements by Pasetti, Hawks, and appellant around the time of the alleged offense. He testified that he was in the hallway outside the barracks room where the alleged crime took place. He said that Pasetti said, “Hey, Gomez, do you want an easy fuck?”; “that he had a girl in his room, and he was switching on her”; and that the two women had gotten “pretty well drunk.” He further testified that Hawks said from the darkened room, “Are you going to fuck her?”, and that Pasetti then said, “Wouldn’t it be funny if she knew Hawks was screwing her because she didn’t like black guys.”
Gomez further testified that he saw appellant who was naked exit the room with a camera case in his hand. Appellant commented to the effect that the situation was “wild.” Gomez then asked him, “Does she know what’s going on?” and appellant replied, “She’s moaning. I guess she does.”
Appellant’s statement to Air Force investigators and his prior testimony at Pasetti’s trial were also introduced as evidence by the prosecution. He admitted having sexual intercourse with the alleged victim but maintained that it was consensual. He also asserted that although she said nothing to him before or after the intercourse, she was awake; she was physically responsive; she never said no; she moaned; and she said his name once or twice during the intercourse. See United States v. Baran, supra at 596-97, for a more complete recitation of the facts.
I
The prosecution was required by Article 120 to prove beyond a reasonable doubt that appellant committed “an act of sexual intercourse with” the victim “by force and without her consent.” It attempted to meet this burden by showing appellant engaged in sexual intercourse with the victim when she was so drunk as to be incapable of giving her consent. See para. 199a, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Carver, 12 M.J. 581, 583 (A.F.C.M.R. 1981), remanded, 13 M.J. 9 (C.M.A. 1982), pet. denied, 15 M.J. 397 (1983) (“if a man engages in sexual intercourse with a female ... whom he knows is unconscious, he is guilty of rape, because the act is without her consent”). Based on generally accepted principles of law with respect to similarly worded rape statutes and the Supreme Court decision in Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897), this Court has recognized this theory of criminal liability under Article 120 of the Code. See United States v. Short, 4 U.S.C.M.A. 437, 441-43, 16 C.M.R. 11, 15-17 (1954).
Trial counsel indicated at various points in the record of trial that he intended to use Pasetti’s out-of-court statements to show the victim’s condition at the time of the offense and to corroborate appellant’s admissions that he had sexual intercourse with her. The statements of Pasetti to Gomez establish that he had been in a position to observe her and that he was of the opinion that she was so drunk that she did not know with whom she was engaging in sexual acts. Moreover, although not expressly stated, they could be reasonably interpreted to mean that appellant was going to or had already engaged in sexual intercourse with her. In this light, it was quite clear that the prosecution was offer[267]*267ing Pasetti’s out-of-court statements for “the truth of the matter[s] asserted” in these statements. Mil.R.Evid. 801(c), Manual, supra.1 Pasetti, however, was not called to the stand to repeat the statements he made at the time of the offense. Cf. Mil.R.Evid. 801(d)(1). The parties agreed that if Pasetti were called, he would assert his privilege against self-incrimination. Consequently, the prosecution evidenced his statements by calling Gomez, the person to whom these statements were made.
The first granted issue implicates several military rules of evidence utilized by the prosecution to admit Pasetti’s out-of-court statements to prove elements of the charged offense. Mil.R.Evid. 801(d)(2)(E) and 804(b)(3). In passing, we note that Mil.R.Evid. 803(1) might also be implicated for this same purpose as well, even though not addressed at the trial level or the Court of Military Review. Cf. United States v. Watkins, 21 M.J. 224 (C.M.A. 1986). Moreover, sixth-amendment confrontation questions also exist, as pointed out by the court below. See United States v. Inadi, — U.S. —, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). We do not decide these difficult questions today for reasons stated in part II of this opinion.
II
Our examination of the record of trial and the opinion below reveals a factual question which must be resolved prior to disposing of the legal issues in this appeal. As noted above, the prosecution relied not only on Pasetti’s statements to prove the elements of the charge of rape, but also on appellant’s statements to Gomez around the time of the alleged offense, his subsequent written statement to Air Force investigators, and his later testimony at Pasetti’s court-martial.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
COX, Judge:
Appellant was tried by general court-martial composed of a military judge alone on December 9-10, 1983, at Royal Air Force Alconbury, England. Contrary to his pleas, he was found guilty of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. He was sentenced to a dishonorable discharge, 11 months’ confinement, total forfeitures, and reduction to E-l. The convening authority reduced the dishonorable discharge to a bad-conduct discharge and then suspended the discharge but otherwise approved the adjudged sentence. The Court of Military Review affirmed. 19 M.J. 595 (1984).
This Court granted review on the following issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED IN ALLOWING HEARSAY TESTIMONY FROM AIRMAN GOMEZ REGARDING STATEMENTS MADE TO HIM BY AIRMAN PASETTI, THE ACCUSED’S ROOMMATE.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY ADMITTING IN EVIDENCE THE ACCUSED’S TESTIMONY FROM THE CASE OF UNITED STATES V. PASETTI, AND THE ACCUSED’S PRIOR WRITTEN STATEMENT WITHOUT ADEQUATE CORROBORATION.
[266]*266This case arose out of a card game in appellant’s barracks room. Appellant, Airman Lawrence Pasetti, Airman Otis Hawks, the alleged victim, and another female were playing a game where the loser of each hand of cards was required to take a drink of bourbon. A stipulation of fact stated that the group had drunk more than a quart of bourbon during the card game. The victim testified that she remembered the end of the game; she remembered waking up in a bed with an airman named Hawks; she remembered having intercourse with Hawks; and she felt that she had had intercourse with Pasetti, but she could not recall having had intercourse with appellant.
To prove the charged offense, the prosecution called Airman Vincent Gomez, who testified over defense objection to certain statements by Pasetti, Hawks, and appellant around the time of the alleged offense. He testified that he was in the hallway outside the barracks room where the alleged crime took place. He said that Pasetti said, “Hey, Gomez, do you want an easy fuck?”; “that he had a girl in his room, and he was switching on her”; and that the two women had gotten “pretty well drunk.” He further testified that Hawks said from the darkened room, “Are you going to fuck her?”, and that Pasetti then said, “Wouldn’t it be funny if she knew Hawks was screwing her because she didn’t like black guys.”
Gomez further testified that he saw appellant who was naked exit the room with a camera case in his hand. Appellant commented to the effect that the situation was “wild.” Gomez then asked him, “Does she know what’s going on?” and appellant replied, “She’s moaning. I guess she does.”
Appellant’s statement to Air Force investigators and his prior testimony at Pasetti’s trial were also introduced as evidence by the prosecution. He admitted having sexual intercourse with the alleged victim but maintained that it was consensual. He also asserted that although she said nothing to him before or after the intercourse, she was awake; she was physically responsive; she never said no; she moaned; and she said his name once or twice during the intercourse. See United States v. Baran, supra at 596-97, for a more complete recitation of the facts.
I
The prosecution was required by Article 120 to prove beyond a reasonable doubt that appellant committed “an act of sexual intercourse with” the victim “by force and without her consent.” It attempted to meet this burden by showing appellant engaged in sexual intercourse with the victim when she was so drunk as to be incapable of giving her consent. See para. 199a, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Carver, 12 M.J. 581, 583 (A.F.C.M.R. 1981), remanded, 13 M.J. 9 (C.M.A. 1982), pet. denied, 15 M.J. 397 (1983) (“if a man engages in sexual intercourse with a female ... whom he knows is unconscious, he is guilty of rape, because the act is without her consent”). Based on generally accepted principles of law with respect to similarly worded rape statutes and the Supreme Court decision in Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897), this Court has recognized this theory of criminal liability under Article 120 of the Code. See United States v. Short, 4 U.S.C.M.A. 437, 441-43, 16 C.M.R. 11, 15-17 (1954).
Trial counsel indicated at various points in the record of trial that he intended to use Pasetti’s out-of-court statements to show the victim’s condition at the time of the offense and to corroborate appellant’s admissions that he had sexual intercourse with her. The statements of Pasetti to Gomez establish that he had been in a position to observe her and that he was of the opinion that she was so drunk that she did not know with whom she was engaging in sexual acts. Moreover, although not expressly stated, they could be reasonably interpreted to mean that appellant was going to or had already engaged in sexual intercourse with her. In this light, it was quite clear that the prosecution was offer[267]*267ing Pasetti’s out-of-court statements for “the truth of the matter[s] asserted” in these statements. Mil.R.Evid. 801(c), Manual, supra.1 Pasetti, however, was not called to the stand to repeat the statements he made at the time of the offense. Cf. Mil.R.Evid. 801(d)(1). The parties agreed that if Pasetti were called, he would assert his privilege against self-incrimination. Consequently, the prosecution evidenced his statements by calling Gomez, the person to whom these statements were made.
The first granted issue implicates several military rules of evidence utilized by the prosecution to admit Pasetti’s out-of-court statements to prove elements of the charged offense. Mil.R.Evid. 801(d)(2)(E) and 804(b)(3). In passing, we note that Mil.R.Evid. 803(1) might also be implicated for this same purpose as well, even though not addressed at the trial level or the Court of Military Review. Cf. United States v. Watkins, 21 M.J. 224 (C.M.A. 1986). Moreover, sixth-amendment confrontation questions also exist, as pointed out by the court below. See United States v. Inadi, — U.S. —, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). We do not decide these difficult questions today for reasons stated in part II of this opinion.
II
Our examination of the record of trial and the opinion below reveals a factual question which must be resolved prior to disposing of the legal issues in this appeal. As noted above, the prosecution relied not only on Pasetti’s statements to prove the elements of the charge of rape, but also on appellant’s statements to Gomez around the time of the alleged offense, his subsequent written statement to Air Force investigators, and his later testimony at Pasetti’s court-martial. In these statements appellant consistently asserted an honest and reasonable belief, on the basis of the conduct of the alleged victim, that she voluntarily consented to an act of sexual intercourse with him. In addition, there was other evidence that pointed at least to the appearance of consent by the victim. Further, in his argument on findings, trial defense counsel reiterated this defense theory to the factfinder, the military judge. In our view, the evidence was sufficient to raise the defense of mistake of fact. See generally United States v. Carr, 18 M.J. 297 (C.M.A.1984); para. 214, Manual, supra.2 Based on the trial findings, we must assume that the military judge was persuaded, beyond a reasonable doubt, that appellant was not reasonably and honestly mistaken regarding the victim’s consent.
The Court of Military Review was likewise free to evaluate the credibility of this evidence and to reject the affirmative defense as a matter of fact. Art. 66(c), UCMJ, 10 U.S.C. § 866(c). However, the opinion below did not address this question of sufficiency. In other circumstances, we might have been content to pass over the matter, relying on a presumption of regularity in the appellate process. However, we view this issue so central to a just resolution of this case that we decline to proceed without the benefit of an express factual determination thereof by the Court of Military Review.3
The decision of the United States Air Force Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the following question:
[268]*268WHETHER ASSUMING, ARGUENDO, THE EVIDENCE OF PASETTI’S STATEMENTS WAS ADMISSIBLE, THE EVIDENCE OF RECORD DISPROVES THE AFFIRMATIVE DEFENSE OF REASONABLE AND HONEST MISTAKE OF FACT BEYOND A REASONABLE DOUBT.
In addition, that court may consider the other issues raised by Chief Judge Everett in his separate opinion.
Judge SULLIVAN did not participate.