United States v. DiPaola

67 M.J. 98, 2008 CAAF LEXIS 1217, 2008 WL 5273691

• Court: Court of Appeals for the Armed Forces
• Decided: December 18, 2008
• Docket: 08-0200/NA
• Status: Published

Opinions

Judge ERDMANN

delivered the opinion of the court.

A panel of officer and enlisted members found Culinary Specialist Petty Officer Third Class Michael C. DiPaola guilty of one specification of making a false official statement and two specifications of indecent assault in violation of Articles 107 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 934 (2000).¹

If the record contains “some evidence” of the affirmative defense of mistake of fact “to which the military jury may attach credit if it so desires,” the military judge is required to instruct the panel on that affirmative defense. United States v. Hibbard, 58 M.J. 71, 72 (C.A.A.F.2003) (citation and quotation marks omitted). We granted DiPaola’s petition to determine whether the military judge erred in not instructing the panel on the mistake-of-fact defense for one of the indecent assault specifications.² We hold that the record contained “some evidence” of mistake of fact, that the military judge therefore erred in failing to give a mistake-of-fact instruction on this specification, and that the error was not harmless beyond a reasonable doubt.

Background

DiPaola and Petty Officer ED met in the late winter of 2004, when they lived in the same barracks. Initially their relationship involved hanging out in each other’s rooms and watching movies. At some point, the relationship became sexual and continued in that vein for several months. The relationship ended because ED “just didn’t want to pursue it any further,” and the pair “just quit talking to each other.”³

In August 2004, when DiPaola returned from a deployment, he went to see ED in her barracks room. ED was “under the weather” and feeling “real sick.” DiPaola told her he had missed her while he was away and wanted to go out with her. ED did not respond other than to tell him that she was not feeling well. As she laid down on her bed, DiPaola laid down behind her; they cuddled and fell asleep.

Three days later when ED returned to her barrack’s room, DiPaola was waiting for her. She let him into her room, and DiPaola told her that he wanted to have sex with her. ED responded that she did not want to have sex. DiPaola kept saying that he wanted to have sex and ED kept saying “no,” but they then began consensually kissing and “making out” and eventually moved to her bed. ED stated she kissed him because she “still had feelings for him.” Once on the bed, ED testified that she got on top of DiPaola and allowed him to remove her shirt and they continued kissing and making out. At some point during their encounter, DiPaola kissed her breasts and then started biting at her breasts. When she told him not to bite her breasts, he stopped.

DiPaola switched positions so that he was on top of ED. He grabbed her wrists and held them down on the bed above her head. DiPaola then attempted to unzip her pants, but ED managed to .get one hand loose and pulled up her zipper. DiPaola continued to say “Let’s have sex” and ED “just kept saying, ‘No,’ and he wouldn’t listen.” DiPaola tried begging ED for sex, which did not amuse her, but when he began offering her such things as marriage, children and his car, she found it amusing. They were both laughing during this exchange.

DiPaola rubbed ED’s “crotch area” with his hand on top of her pants and he put her legs on his shoulders and “acted like he was having sex with [her].” This position hurt ED’s wrists and legs and she pushed and kneed him. When DiPaola left the bed, he removed his penis from his pants and began stroking it with his hand. ED told him to stop but DiPaola continued and asked her several times for oral sex. ED told him “no” and told him she would “bite it off and spit it at him” if he came any closer. According to ED, DiPaola laughed as he thought she was joking. A few minutes later DiPaola stopped and said “he couldn’t believe that it took so long, about an hour and a half, for [ED] to keep saying no, and [for him to] finally giv[e] up.” DiPaola then left ED’s room.

In a sworn statement to Naval Criminal Investigative Service that was admitted into evidence, DiPaola acknowledged that he asked ED to have sex with him, but she said, “No.” He then “decided to try and convince her to have sex with [him]” until he understood that she was not going to change her mind and have sexual intercourse with him.⁴

Discussion

A military judge is required to instruct the panel on affirmative defenses, such as mistake of fact, “if ‘the record contains some evidence to which the military jury may attach credit if it so desires.’ ” Hibbard, 58 M.J. at 72 (quoting United States v. Broum, 43 M.J. 187, 189 (C.A.A.F.1995)). When the defense has been raised by “some evidence,” the military judge has a sua sponte duty to give the instruction. Brown, 43 M.J. at 189 (citing Rule for Courts-Martial (R.C.M.) 920(e)(3)).

An accused is not required to testify in order to establish a mistake-of-fact defense. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F.1998). The evidence to support a mistake-of-fact instruction can come from evidence presented by the defense, the prosecution or the court-martial. Id. (citing R.C.M. 916(b) Discussion). In addition:

[t]he defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction.... “Any doubt whether an instruction ‘should be given should be resolved in favor of the accused.’ ”

Hibbard, 58 M.J. at 73 (quoting Brown, 43 M.J. at 189) (citations omitted).

While an indecent assault offense⁵ includes a specific intent element as to whether the touching was committed to satisfy the lust or sexual desires of the accused, the lack of consent element of the offense is a general intent element. United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F.1997). “Accordingly, a mistake-of-fact defense on this element would require both a subjective belief of consent and a belief that was reasonable under all circumstances.” Id. at 234-35.

DiPaola argues that there was “some evidence” before the panel that he honestly and reasonably believed ED consented to some of his actions. In support of this argument he notes: their prior consensual sexual relationship; ED’s consent to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse; their mutual kissing and making out; their laughter as to his offers of marriage, children and his car; and his compliance when she told him to stop biting her breasts. This evidence is put in context by the defense counsel’s request for a mistake-of-fact instruction and the mistake-of-fact themes raised in opening and closing statements.

The Government responds that the dispute at trial did not concern mistake of fact as to consent but focused on whether there was consent. It contends that because no evidence of a mistake of fact as to consent was presented by either party, the military judge was correct in not providing the instruction, citing United States v. Willis, 41 M.J. 435 (C.A.A.F.1995).

In Willis, we found that the dispute at trial was limited to actual consent and stated “that a mistake-of-fact instruction is not warranted where the evidence raises and the parties dispute only the question of actual consent.” Id. at 438. In this case the facts present no such clear dichotomy. While it is well established that ED said “no” to sexual intercourse on this day and also asked DiPaola to stop biting her breasts, it is also clear that ED consented to and willingly participated in some of the sexual acts listed in the specification, such as kissing DiPaola and allowing him to take off her shirt and kiss her breasts. These consensual acts could be seen, in conjunction with their past sexual relationship, as creating a “mixed message” as to which acts were permissible and which were off-limits.

Nor did the theory of the defense case focus solely on unambiguous consent as it did in Willis. While the Government argues that DiPaola’s defense counsel presented the members with a “he said/she said” case, that argument ignores the approach taken by DiPaola’s defense counsel in his opening and closing statements.⁶ In his opening statement the defense counsel stated:

Members of the jury, there’s often a fine line between seduction and allegations of assault, and where that line falls, where it is drawn is what you’re going to have to decide in this case.

There’s also no dispute that this relationship continued and was of a casual nature, as the evidence will show. What that means, and how casual a sexual relationship, will be again the testimony for you to decide, and whether it was on-going or off and on will also play a role in how this case is viewed, and whether or not, on previous occasions during the sexual relationship when a person said “no,” ... “no” doesn’t always mean “no” in the course of a relationship.

During closing argument, the defense counsel returned to this theme:

And when I hear the government say “No means no, even a child understands that,” but not if you’ve been saying yes to the child. If you suddenly say no, that doesn’t mean that that child understands. And with adults, it’s even more complicated, because you have someone like [ED] saying yes, yes, yes, no once, yes, yes, yes. And therefore when the government makes the argument, “If you say no, that’s the end of it,” we all know that that’s not the case and that’s an oversimplification of all human behavior.

Here DiPaola’s defense counsel raises the possibility of a “mixed message” that courts have considered in determining whether a mistake-of-fact instruction should have been given. See United States v. Buckley, 35 M.J. 262, 264 (C.M.A.1992). While the record clearly reflects that DiPaola wanted to have sex with ED and on the day in question she did not, the pair did not have sexual intercourse that day. The record also reflects that ED consented to some of the conduct at issue in the specification. The conduct and conversations of the parties during the encounter, as informed by the “mixed message” defense theme, provide “some evidence” that could support an honest (subjective) and reasonable (objective) belief as to consent to some or all of the alleged acts.

DiPaola’s defense counsel also requested a mistake-of-fact instruction regarding DiPaola’s belief that he had ED’s consent to act as he did. The military judge declined to give a mistake-of-fact instruction on this specification, mistakenly believing that such a defense was not available for an indecent assault offense. While the military judge has a sua sponte duty to give such an instruction even in the absence of a defense request, counsel’s request for the instruction is indicative of the defense’s theory of the case and can be considered by appellate courts as context for whether the entire record contains “some evidence” that would support the instruction. See Hibbard, 58 M.J. at 73 (stating that the defense theory at trial is a non-dispositive factor).

When “some” evidence exists in the record, the military judge must give a mistake-of-fact instruction. See United States v. Taylor, 26 M.J. 127, 129-30 (C.M.A.1988). Here the record reveals a “mixed message” evidentiary situation which, when considered in conjunction with defense counsel’s “mixed message” theme in his opening and closing statements and his request of a mistake-of-fact instruction, comprises “some evidence” of a mistake of fact that the panel could attach credit to if it so desired. Accordingly, the military judge erred in not instructing the panel on mistake of fact.

Once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Stated differently, 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, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.2002).

In the context of this case, we cannot say that the absence of a mistake-of-fact instruction on this offense was harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to another charge involving the same victim in the same setting. The defense requested and the military judge gave a mistake-of-fact instruction for the indecent exposure offense stemming from DiPaola removing his penis from his pants in ED’s presence immediately after the events on the bed occurred. The mistaken belief at issue in the indecent exposure specification focused on whether ED would find the exposure offensive. In giving that mistake-of-fact instruction, the military judge instructed the panel to consider the prior relationship and all the circumstances leading to the exposure. The panel subsequently found DiPaola not guilty of that specification.

Had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, we are unable to find beyond a reasonable doubt that the panel would have found DiPaola guilty. See Chapman, 386 U.S. at 24, 87 S.Ct. 824. The missing instruction “essentially undercut [a] defense theory and could very well have contributed to the finding of guilty.” United States v. Lewis, 65 M.J. 85, 89 (C.A.A.F.2007).

Decision

The military judge erred in failing to instruct the panel on the affirmative defense of mistake of fact and that error was not harmless beyond a reasonable doubt. Accordingly, those portions of the decision of the United States Navy-Marine Corps Court of Criminal Appeals which affirmed Specification 2 of Charge II and the sentence are reversed. The remaining findings are affirmed. The finding for Charge II, Specification 2 and the sentence are set aside. The record is returned to the Judge Advocate General of the Navy for remand to the convening authority for a rehearing on findings on that specification and/or sentencing.

1 . DiPaola was charged with one specification of false official statement in violation of Article 107, UCMJ, two specifications of indecent assault and two specifications of indecent exposure all in violation of Article 134, UCMJ. He was acquitted of the two indecent exposure specifications.

2 . Specification 2 of Charge II charged that DiPaola "commit[ted] an indecent assault upon [ED], U.S. Navy, a person not his wife, by holding her down on her bed by her wrists, kissing her, fondling and biting her breasts, sitting and laying on top of her, touching her vaginal area with his hand, attempting to remove her underwear, and rubbing his erect penis against her vaginal area, with intent to gratify his sexual desires.”

3 .As DiPaola exercised his right not to testify, all of the testimonial evidence as to the incident in question came from ED.

4 . It appears clear from the context of DiPaola’s statement, that when he uses the term "sex" he is referring to "intercourse” as opposed to the conduct charged in the specification.

5 . DiPaola was charged with indecent assaults while that offense was still listed under Article 134, UCMJ. See generally Manual for Courts-Martial, United States pt. IV, para. 63 (2005 ed.).

6 . Although the defense at trial did ask for a "he said/she said” instruction, a "military judge's duly to instruct is not determined by the defense theory; he must instruct if the defense is raised.” United States v. Brown, 43 M.J. 187, 189 (C.A.A.F.1995). The defense’s theory of the case is "not dispositive in determining what affirmative defenses have been reasonably raised by the evidence” but can be taken "into account” when "considering [the] evidence.” Hibbard, 58 M.J. at 76.