United States v. Goldwire

55 M.J. 139, 2001 CAAF LEXIS 677, 2001 WL 668823
CourtCourt of Appeals for the Armed Forces
DecidedJune 14, 2001
Docket00-0349/AF; Crim.App. 32840
StatusPublished
Cited by11 cases

This text of 55 M.J. 139 (United States v. Goldwire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Goldwire, 55 M.J. 139, 2001 CAAF LEXIS 677, 2001 WL 668823 (Ark. 2001).

Opinions

Chief Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted by officer members at a general court-martial of rape and wrongfully possessing alcohol while under 21 years of age, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 920 and 934. He was sentenced to a bad-conduct discharge and 42 months’ confinement. The convening authority reduced the period of confinement to 24 months, but otherwise approved the sentence. The court below affirmed. 52 MJ 731 (1999). We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING MASTER SERGEANT GREEN TO TESTIFY AS TO HIS OPINION AS TO APPELLANT’S CHARACTER FOR TRUTHFULNESS.

For the reasons stated herein, we hold that the military judge did not err by permitting Master Sergeant Green to testify as to appellant’s character for truthfulness.

FACTS

On July 5, 1996, appellant and two of his friends, Airman B and Airman M, invited Airman K, the female victim of the rape, to attend a party at Airman B’s off-base apartment the following day. Airman K had never spoken to appellant before that night. Nevertheless, she agreed to attend the party because she thought it would be fun.

The next morning, Airman K met appellant and his friends to accompany them to the party. Their plan was “to go to Airman [B’s] apartment and drink.” On the way to the party, the group stopped at a liquor store where Airman K bought beer, a bottle of vodka, and orange juice. The party started that morning and continued throughout the day. At one point, Airman K went to Taco Bell for lunch with appellant. On the way back, they stopped at a second liquor store and purchased more alcoholic beverages for the party. The in-party activities consisted of drinking, listening to the radio, and playing cards and dominoes.

During the course of the day, appellant became very intoxicated, to the point of becoming ill. Airman K and Airman B found appellant lying on the bathroom floor and helped him into the bedroom. By evening, Airman B, Airman M, Airman K, and appellant remained at the apartment. Airman B and Airman K began to play a drinking game while Airman M watched. During the game, Airman K consumed orange juice and vodka. After the game, Airman K sat at one end of the couch with Airman M at the other end, and Airman B sat in a chair. The three airmen fell asleep. At that point, appellant was still in the bedroom.

Airman K testified that the next thing she remembered was waking up on the bed in the bedroom with appellant on top of her. She was naked from the waist down, and her shirt and bra were pushed above her breasts. She said appellant’s legs were on top of hers, and his hands were at either side of her waist.

Airman K testified that she attempted to push appellant away when someone grabbed her wrists and pulled her arms back against the bed. She stated that she started fighting and screaming and telling appellant to stop, and that is when appellant started having sex with her. She remembered appellant having sex with her for about a minute while she was telling him to get off of her and let her go. Airman K also testified that she pushed appellant and he jumped off the bed. Airman K got off the bed and put on some pants that were on the floor. She testified that appellant tried to block her from leaving the room, but she hit him and got outside. She headed for the guard shack with appellant trying to get her to come back to the apartment. Someone passing the area stopped and gave Airman K a ride back to her squadron.

Airman K returned to her dormitory room at approximately 10:00 p.m. When her roommate opened the door, Airman K was holding her pants with one hand and crying hysterically. After describing what hap[141]*141pened to her, Airman K told her roommate that she could not believe that appellant did that to her. Airman K was taken to the emergency room at the base hospital, where a test taken at 1:30 a.m. on July 7, 1996, showed her blood alcohol level to be .142.

Airman B testified for the Government under a grant of immunity. He testified that he woke up that evening with his' hand on Airman K’s leg. He noticed that Airman M seemed to be “half awake.” Airman B proceeded to touch Airman K’s breasts under her clothing. Airman M did the same. Airman B then exposed Airman K’s breasts by pushing her shirt up over her breasts. He then unbuttoned and unzipped Airman K’s jeans. He and Airman M proceeded to remove Airman K’s jeans and underwear. At that point, appellant came out of the bedroom and began to fondle Airman K’s breasts, rub her legs, and kiss her neck. There was no initial response from Airman K, but she began to rub appellant’s neck and back when he started to have intercourse with her. Airman B saw Airman K wake up and tell appellant to stop. Appellant did so. At that point, appellant picked up Airman K and took her into the bedroom. Shortly thereafter, Airman K left the apartment followed by appellant.

Appellant did not testify at trial. Special Agent Donald I. Phillips was called by the Government and testified that following a rights advisement, appellant gave an oral statement in December, approximately five months after the incident with Airman K. In the statement, appellant admitted having sexual intercourse with Airman K. Appellant also stated that prior to having sex with him, Airman K had not said anything, and her eyes were closed. However, he claimed there were a couple of times when his penis came out of Airman K’s vagina and she reinserted it.

During cross-examination of Agent Phillips, defense counsel established that a number of facts contained in appellant’s statement were consistent with a consensual act of intercourse: Airman K was not so intoxicated that she could not participate in foreplay; Airman K rubbed the back of appellant’s neck prior to sexual intercourse; twice she asked appellant to stop and he did stop; and appellant told Agent Phillips that when they completed having sexual intercourse, they talked.

Later, the military judge, after a timely objection by trial defense counsel, permitted appellant’s first sergeant, Master Sergeant (MSgt) Gary E. Green, to offer his opinion of appellant’s character for truthfulness. MSgt Green testified as follows:

Q. Sergeant Green, in your duties as first sergeant have you had contacts with the accused?
A. Yes, I have.
Q. And, based on those contacts with the accused, have you been able to form an opinion as to his character for truthfulness?
A. Yes, I have.
Q. What is that opinion?
A. That he is not truthful.

After admitting the opinion character evidence from appellant’s first sergeant, the military judge gave the following cautionary instruction to the members:

Members of the court, with regard to the testimony you heard yesterday from Sergeant Green, Master Sergeant Green was permitted to express his opinion of the accused’s character for truthfulness for your evaluation in considering the weight you’ll accord the accused’s out of court statements as related in the testimony of other witnesses.

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Cite This Page — Counsel Stack

Bluebook (online)
55 M.J. 139, 2001 CAAF LEXIS 677, 2001 WL 668823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-goldwire-armfor-2001.