United States v. Bins

43 M.J. 79, 1995 CAAF LEXIS 116, 1995 WL 571798
Court of Appeals for the Armed Forces·Decided September 27, 1995·No. No. 94-1211; CMR No. 9200243·Published·Cited by 58 cases

Opinions

Opinion of the Court

GIERKE, Judge:

1. Sergeant First Class (SFC) Michael J. Bins appeals his convictions of attempted rape, attempted forcible anal sodomy, failure to obey a lawful order, forcible oral sodomy, assault with a means likely to produce grievous bodily harm, and communicating a threat, in violation of Articles 80, 92,125,128, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892, 925, 928, and 934, respectively. Despite his pleas, SFC Bins was convicted by a general court-martial composed of officer and enlisted members. The approved sentence was a bad-conduct discharge, confinement for 5 years, total forfeitures, and reduction to Private E1.

2. The Court of Military Review* ordered a new post-trial recommendation and action based on several omissions in the staff judge advocate’s recommendation including “fail[ure] to respond to the post-trial assertions of legal error” and omission of a complete list of the charges and the findings thereon. 38 MJ 704, 707 (1993). Following the new action, the court below on further review affirmed the findings and sentence in an unpublished opinion. We granted appellant’s petition to decide the following issue:

WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO ORDER THE PRODUCTION OF RELEVANT TESTIMONY THAT DEMONSTRATED A MOTIVE ON THE PART OF MS. [P.], THE ALLEGED VICTIM, TO MAKE FALSE ACCUSATIONS AGAINST SERGEANT FIRST CLASS BINS.

We hold that the military judge did not commit reversible error.

I. Background

A Facts

3. SFC Bins was assigned to an artillery unit in Hanau, Germany. On July 13, 1991, he deployed to Crete, Greece, for an exercise at the NATO Aliance Missile Firing Installa[81] tion (NAMFI). SFC Bins was familiar with the local area because he had been assigned to NAMFI previously. During the night in question, his unit was required to return to the “Cantonment area” by 2300 hours as well as comply with the NAMFI Headquarters 0100 hours curfew.

4. Theresa P., a 25 year-old U.S. citizen traveling abroad, was living in the nearby town of Hania, Greece. She had been traveling and working in Europe since May 1990 and arrived in Hania during mid-May 1991. She obtained a job teaching English as a foreign language, but it would not start for several weeks. After some additional traveling in Greece, she returned to Hania and started teaching in early July 1991. Around 2215 hours on July 14, Theresa left her room in a pension house and went to a local bar to escape the summer heat.

5. About 2 hours later, around midnight, SFC Bins entered the bar and sat next to Theresa. The two talked together for about 30 minutes. SFC Bins asked Theresa if she wanted to join him in going to another local bar; she agreed, and the two walked a short distance to the bar. At about 0130 hours, they left the bar, again at SFC Bins’ invitation, to find a restaurant and eat. They were unable to find an open restaurant, so SFC Bins suggested they travel by taxi to another area where at least two restaurants would be open. Theresa said, “Well, okay,” and the two found a taxi and started the trip.

6. They rode in the taxi for about 10 to 15 minutes until SFC Bins told the driver to stop. Theresa asked SFC Bins why the taxi didn’t continue on to a mass of lights about 200 meters away, and he said, “Well, the walk is nice.” After SFC Bins paid the fare, the two exited the taxi and started walking on the road toward the mass of lights. After walking a short distance, Theresa felt a heave from her left side, and she fell down, causing her to lose consciousness. After regaining consciousness, Theresa remembered crawling on the road trying to make it to the mass of lights when SFC Bins kicked her in the face. The kick’s force knocked out Theresa again. SFC Bins grabbed Theresa by her ankles and dragged her from the road over some rocks toward the sea.

7. When she regained consciousness, Theresa saw that SFC Bins was naked, and he demanded that she take her shorts off. Theresa refused initially, but SFC Bins picked up a rock and threatened her with death. After his attempt at vaginal intercourse failed, SFC Bins demanded that Theresa perform fellatio. Again, Theresa initially refused until SFC Bins struck her in the face with the heel of his hand and threatened to kill her. He attempted intercourse and told Theresa to assist him in penetration. She guided his penis toward her anus instead, to avoid an unwanted pregnancy. SFC Bins was unable to achieve an erection, and his second attempt at intercourse also failed.

8. SFC Bins told Theresa to continue moving down the rocky slope toward the sea, and she complied. Once there, he told Theresa to get on the ground and assume a position for anal intercourse. She complied, and he attempted to penetrate her anally but failed because he was unable to achieve an erection. SFC Bins demanded fellatio and told Theresa to make his penis erect. She complied, and soon SFC Bins again attempts ed anal intercourse, but he was unable to maintain an erection, and his efforts were futile.

9. SFC Bins then noticed that Theresa had been using some of his clothing as a cushion against the rocks for her arms. He put his pants on, accused Theresa of stealing his money, and said, “That was all my German marks, all my money is gone, all of it.” While SFC Bins searched for his money, Theresa was able to put on her underwear and shorts. Theresa described his search as a “rampage,” like “he had lost a treasure____” Theresa slowly moved up the rocks toward the road while SFC Bins continued his search, but before she reached the road he approached her and demanded vaginal intercourse. She refused, but he then demanded she perform fellatio for 5 minutes. She agreed to 2 minutes if he would let her go. She did so for about 30 seconds, reminded SFC Bins about his lost money, and he [82] returned to his search while she made it up to the road.

10. SFC Bins returned to Theresa and accused her of trying to get away. He straddled her, grabbed her by the neck, and struck her head against the road. She begged him to stop, and he resumed his search. Theresa noticed a person approaching the area and called out for help. Theresa continued her escape, naked from the waist up, and made it to the mass of lights where she found a gate guarded by another man. The gate guard let Theresa inside the compound, and they went to an office where he called the Greek police, who arrived about 2 hours later, around 0630 hours. Before the police arrived, however, an employee of the facility asked Theresa what had happened. During this conversation, she described her attacker as a black American male.

11. After the police arrived, Theresa accompanied them to the area where she had been attacked. The police found German, United States, and Greek currency; a man’s comb; a pair of dark sunglasses; SFC Bins’ military identification (ID) card; and her torn and bloody T-shirt. All the items were found within a short distance of each other. The police showed SFC Bins’ ID card to Theresa, and she confirmed that the man pictured on the ID card was her attacker.

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United States v. Bins, 43 M.J. 79, 1995 CAAF LEXIS 116, 1995 WL 571798 (Ark. 1995).

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