Opinion
COX, Judge:
Contrary to his pleas, appellant was convicted by a general court-martial composed of military judge alone of rape, extortion, and adultery, in violation of Articles 120, 127, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 927, and 934, respectively. He was sentenced to confinement for 30 years, forfeiture of all pay, reduction to E-l, and a dishonorable discharge. The convening authority disapproved the findings as to the adultery charge but approved the sentence. The Court of Military Review affirmed in a per curiam opinion. This Court granted review of five issues. 21 M.J. 166. Finding no error prejudicial to the substantial rights of appellant, we affirm. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).
The evidence showed that the 20-year-old prosecutrix, Julie P., arrived at Camp Lejeune, North Carolina, on Friday, June 3, 1983, to visit her boyfriend, Private First Class Walter Litteral. Appellant, who was Litteral’s section leader, discovered on Sunday afternoon that Julie was staying with Litteral in his barracks room, apparently in violation of a barracks regulation. Appellant informed Litteral that he would be in [5] trouble if the staff duty officer learned that he had a female in his room and suggested that Litteral take Julie to appellant’s room to avoid her being discovered. Litteral complied, taking Julie to appellant’s room in the barracks and instructing her to lock the door and to admit no one while he was gone to perform mess duty.
Shortly after Julie entered appellant’s room, someone knocked on the door and stated that it was Sergeant Hicks and that he needed to get into his room. Julie unlocked the door and appellant entered. He told her that he was in charge of the men whose names were listed on the wall chart. Appellant seated himself at the desk and began to write on a yellow pad, asking her name and where she was from, speaking at all times in a stem and authoritative manner. He told Julie that he was preparing a charge sheet on Litteral. He then tore the sheet of paper from the pad and handed it to her. It stated something to the effect that PFC Litteral had her in the barracks contrary to regulations. When Julie inquired as to the consequences for her friend, appellant answered that Litteral would have to go before officers and lose his pay and privileges and that “he would probably get thrown in the brig.”
Appellant asked Julie if she “wanted to get ... Litteral out of that trouble?” To her response of “Yes, I would,” appellant said, “You ... You, for Litteral’s trouble.” Appellant then crumpled up the sheet of paper and threw it down. He came over to Julie, took her hand, and asked, “Have we got a deal?” Julie did not answer. Still holding her hand, appellant said, “It doesn’t matter if you cooperate or not, I’m going to give it to you anyway.” Julie testified that she realized appellant’s intentions at that point and “thought that maybe I could hurt him if I kicked him hard and ran, but I didn’t have anywhere to go, and I didn’t know anybody, I didn’t know where ... [Litteral] was.” She “was scared” and “trembling at that time” and “just stood there.” Appellant proceeded to remove her clothing and have sexual intercourse with her. Julie admitted that she offered no resistance, explaining as follows:
Because I had read articles and seen on talk shows, and I’ve read articles on rape, and everyone advised that you should never try to fight the man, because you cannot outpower him and if you should not hurt him enough to get away, he’ll hurt you back, it will make him mad and he’ll hurt you back and the only thing you can do is cooperate.
Julie did not tell anyone of the incident right away, but eventually told her girl friend and brother. She made a formal complaint on June 20.
I.
The first granted issue concerns whether appellant’s actions as alleged and proved constitute the offense of extortion under Article 127. The extortion specification alleges as follows:
Sergeant ... HICKS, ... did, ... with intent unlawfully to obtain sexual favors from Julie ..., communicate to the said Julie ... a threat to accuse ... LITTER-AL ..., of having violated a lawful regulation, to wit: ... [having] a female ... in his barracks room in violation of appropriate Barracks regulations.
The offense of extortion is composed of two elements: (1) communication of a threat; (2) “with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity.” Art. 127.
Appellant maintains that communicating a threat with the intent to obtain sexual favors does not satisfy the second element of extortion under Article 127. He posits that the intent to gratify a personal desire is not an “advantage” or “anything of value” under the statute. We specifically reject the suggestion that these statutory terms do not extend to sexual favors or the fulfillment of subjective desires. It is sufficient if there is some “value” or “advantage” to the accused in the thing sought. “Value” and “advantage” are broad concepts and are not limited to pecuniary or material gain. United States v. McCollum, 13 M.J. 127, 129-30 (C.M.A.1982). In [6] the instant case, the elements of Article Í27 are satisfied both in the allegations and in the proof.
II
The. next granted issue concerns whether the evidence is sufficient as a matter of law to convict appellant of rape. Appellant contends that the evidence does not establish that the sexual intercourse was accomplished by force and without Julie’s consent. The elements of rape are that: (1) the accused committed an act of sexual intercourse with a female; (2) the female was not his wife; and (3) the act of sexual intercourse was done “by force and without her consent.” Art. 120(a). “All the surrounding circumstances are to be considered in determining whether a woman gave her consent, or whether she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm.” Para. 199a, Manual for Courts-Martial, United States, 1969 (Revised edition). The force used to accomplish the sexual intercourse may be actual or constructive. United States v. Henderson, 4 U.S.C.M.A. 268, 15 C.M.R. 268 (1954); United States v. DeJonge, 16 M.J. 974 (A.F.C.M.R. 1983). Furthermore, constructive force may consist of expressed or implied threats of bodily harm. See United States v. Lewis, 6 M.J. 581 (A.C.M.R.1978), pet. denied, 6 M.J. 194 (1979); Maryland v. Rusk, 289 Md. 230, 424 A.2d 720 (1981); State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); State v. Dill, 42 Del. 533, 40 A.2d 443 (Trial Court 1944).
Evidence demonstrated that:
(1) Appellant and the victim were not married and, indeed, were not acquainted until the incident in question;
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Opinion
COX, Judge:
Contrary to his pleas, appellant was convicted by a general court-martial composed of military judge alone of rape, extortion, and adultery, in violation of Articles 120, 127, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 927, and 934, respectively. He was sentenced to confinement for 30 years, forfeiture of all pay, reduction to E-l, and a dishonorable discharge. The convening authority disapproved the findings as to the adultery charge but approved the sentence. The Court of Military Review affirmed in a per curiam opinion. This Court granted review of five issues. 21 M.J. 166. Finding no error prejudicial to the substantial rights of appellant, we affirm. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).
The evidence showed that the 20-year-old prosecutrix, Julie P., arrived at Camp Lejeune, North Carolina, on Friday, June 3, 1983, to visit her boyfriend, Private First Class Walter Litteral. Appellant, who was Litteral’s section leader, discovered on Sunday afternoon that Julie was staying with Litteral in his barracks room, apparently in violation of a barracks regulation. Appellant informed Litteral that he would be in [5] trouble if the staff duty officer learned that he had a female in his room and suggested that Litteral take Julie to appellant’s room to avoid her being discovered. Litteral complied, taking Julie to appellant’s room in the barracks and instructing her to lock the door and to admit no one while he was gone to perform mess duty.
Shortly after Julie entered appellant’s room, someone knocked on the door and stated that it was Sergeant Hicks and that he needed to get into his room. Julie unlocked the door and appellant entered. He told her that he was in charge of the men whose names were listed on the wall chart. Appellant seated himself at the desk and began to write on a yellow pad, asking her name and where she was from, speaking at all times in a stem and authoritative manner. He told Julie that he was preparing a charge sheet on Litteral. He then tore the sheet of paper from the pad and handed it to her. It stated something to the effect that PFC Litteral had her in the barracks contrary to regulations. When Julie inquired as to the consequences for her friend, appellant answered that Litteral would have to go before officers and lose his pay and privileges and that “he would probably get thrown in the brig.”
Appellant asked Julie if she “wanted to get ... Litteral out of that trouble?” To her response of “Yes, I would,” appellant said, “You ... You, for Litteral’s trouble.” Appellant then crumpled up the sheet of paper and threw it down. He came over to Julie, took her hand, and asked, “Have we got a deal?” Julie did not answer. Still holding her hand, appellant said, “It doesn’t matter if you cooperate or not, I’m going to give it to you anyway.” Julie testified that she realized appellant’s intentions at that point and “thought that maybe I could hurt him if I kicked him hard and ran, but I didn’t have anywhere to go, and I didn’t know anybody, I didn’t know where ... [Litteral] was.” She “was scared” and “trembling at that time” and “just stood there.” Appellant proceeded to remove her clothing and have sexual intercourse with her. Julie admitted that she offered no resistance, explaining as follows:
Because I had read articles and seen on talk shows, and I’ve read articles on rape, and everyone advised that you should never try to fight the man, because you cannot outpower him and if you should not hurt him enough to get away, he’ll hurt you back, it will make him mad and he’ll hurt you back and the only thing you can do is cooperate.
Julie did not tell anyone of the incident right away, but eventually told her girl friend and brother. She made a formal complaint on June 20.
I.
The first granted issue concerns whether appellant’s actions as alleged and proved constitute the offense of extortion under Article 127. The extortion specification alleges as follows:
Sergeant ... HICKS, ... did, ... with intent unlawfully to obtain sexual favors from Julie ..., communicate to the said Julie ... a threat to accuse ... LITTER-AL ..., of having violated a lawful regulation, to wit: ... [having] a female ... in his barracks room in violation of appropriate Barracks regulations.
The offense of extortion is composed of two elements: (1) communication of a threat; (2) “with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity.” Art. 127.
Appellant maintains that communicating a threat with the intent to obtain sexual favors does not satisfy the second element of extortion under Article 127. He posits that the intent to gratify a personal desire is not an “advantage” or “anything of value” under the statute. We specifically reject the suggestion that these statutory terms do not extend to sexual favors or the fulfillment of subjective desires. It is sufficient if there is some “value” or “advantage” to the accused in the thing sought. “Value” and “advantage” are broad concepts and are not limited to pecuniary or material gain. United States v. McCollum, 13 M.J. 127, 129-30 (C.M.A.1982). In [6] the instant case, the elements of Article Í27 are satisfied both in the allegations and in the proof.
II
The. next granted issue concerns whether the evidence is sufficient as a matter of law to convict appellant of rape. Appellant contends that the evidence does not establish that the sexual intercourse was accomplished by force and without Julie’s consent. The elements of rape are that: (1) the accused committed an act of sexual intercourse with a female; (2) the female was not his wife; and (3) the act of sexual intercourse was done “by force and without her consent.” Art. 120(a). “All the surrounding circumstances are to be considered in determining whether a woman gave her consent, or whether she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm.” Para. 199a, Manual for Courts-Martial, United States, 1969 (Revised edition). The force used to accomplish the sexual intercourse may be actual or constructive. United States v. Henderson, 4 U.S.C.M.A. 268, 15 C.M.R. 268 (1954); United States v. DeJonge, 16 M.J. 974 (A.F.C.M.R. 1983). Furthermore, constructive force may consist of expressed or implied threats of bodily harm. See United States v. Lewis, 6 M.J. 581 (A.C.M.R.1978), pet. denied, 6 M.J. 194 (1979); Maryland v. Rusk, 289 Md. 230, 424 A.2d 720 (1981); State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); State v. Dill, 42 Del. 533, 40 A.2d 443 (Trial Court 1944).
Evidence demonstrated that:
(1) Appellant and the victim were not married and, indeed, were not acquainted until the incident in question;
(2) Appellant was in a position of authority over the victim’s boyfriend and manipulated the situation to get the victim alone in appellant’s room;
(3) Appellant created a coercive atmosphere, threatening to report her boyfriend for a crime if she did not submit to him;
(4) Appellant indicated his intent to use whatever force was necessary to accomplish intercourse by stating, “It doesn’t matter if you cooperate or not, I’m going to give it to you anyway;”
(5) Appellant spoke to the victim throughout the incident in a commanding, authoritative voice;
(6) The victim was placed in fear of bodily harm; she remembered being advised by various articles and television programs that it was better not to resist unless you are sure you can hurt your assailant to such an extent as to make good your escape; and
(7) The victim was unfamiliar with the area and felt she had nowhere to run for safety.
The existence and reasonableness of the victim’s fear of bodily harm under the totality of the circumstances are questions of fact. See Maryland v. Rusk, supra. The military judge heard the evidence, observed the victim’s demeanor, and obviously concluded that appellant’s acts were sufficient to reasonably create in the victim’s mind— having regard for the circumstances in which she was placed, and her age, size, and mental condition — a genuine fear of bodily harm. As this Court is expressly limited by Article 67(d), UCMJ, 10 U.S.C. § 867(d), “to matters of law,” we are precluded from setting aside the findings of guilty based on insufficiency of the evidence unless there is no competent evidence from which a rational trier of fact could have found beyond a reasonable doubt the existence of every element of the offense. United States v. Knudson, 14 M.J. 13 (C.M.A.1982); United States v. Taylor, 21 U.S.C.M.A. 220, 44 C.M.R. 274 (1972). See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 500 (1979). In our view, there is sufficient evidence to support the determination below that appellant accomplished the act of sexual intercourse by force and without consent.
Ill
The third granted issue concerns the denial of a defense motion in limine to ex-[7] elude the testimony of four female witnesses who testified to prior similar acts of extortion by appellant in regard to each of them. Trial counsel offered the evidence under Mil.R.Evid. 404(b), Manual, supra, to show motive, intent, state of mind, and plan or scheme. Mil.R.Evid. 404(b) provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(a)
Although evidence of other crimes, wrongs, or acts is inadmissible to prove criminal propensity, it may be admissible when it is relevant for another purpose, such as those enumerated in the rule. Cf. United States v. White, 23 M.J. 84 (C.M.A.1986); United States v. Rappaport, 22 M.J. 445 (C.M.A.1986). The military judge admitted the evidence as tending
to prove a scheme, plan, or modus operandi ... of the accused to utilize his rank as a noncommissioned officer in conjunction with the military legal system to procure or to coerce submission to dates and/or sexual intimacy with females found or placed in compromising positions.
We cannot say that the evidence of other acts tended to prove only criminal propensity. It was also highly probative of a certain method or scheme employed by appellant to use his position of authority “to orchestrate events” to obtain sexual or monetary favors from vulnerable females. See Oliphant v. Koehler, 594 F.2d 547, 553 (6th Cir.1979). In making his ruling, the military judge conducted on the record the proper analysis and concluded that: (1) the evidence tended to prove that appellant committed prior crimes, wrongs, or acts; (2) the evidence was offered for a proper purpose; and (3) the probative value was not substantially outweighed by the danger of unfair prejudice. See United States v. White, supra. We are satisfied that the military judge did not abuse his discretion in so ruling. See United States v. Brooks, 22 M.J. 441 (C.M.A.1986); United States v. Watkins, 21 M.J. 224 (C.M.A.1986).
(b)
Appellant further asserts that the principle of collateral estoppel barred introduction of the testimony of at least two of the witnesses because these women testified to acts of which appellant had been tried by courts-martial and acquitted. This is a question of first impression for this Court. Unfortunately, the only information concerning the acquittals provided in the record of trial is copies of the court-martial orders of the prior trials. They reflect that appellant was acquitted at a special court-martial in October 1980 of extortion, indecent assault, and committing an indecent act involving one witness; and at a general court-martial in March 1982 of attempted rape, assault with intent to commit rape, and communication of a threat involving another witness.
“‘Collateral estoppel’ ____ means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)(emphasis added). In Ashe, the Supreme Court determined that collateral estoppel applies to criminal prosecutions as part of the constitutional prohibition against double jeopardy.