United States v. Lips

22 M.J. 679, 1986 CMR LEXIS 2559
CourtU S Air Force Court of Military Review
DecidedMay 2, 1986
DocketACM 24883
StatusPublished
Cited by268 cases

This text of 22 M.J. 679 (United States v. Lips) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lips, 22 M.J. 679, 1986 CMR LEXIS 2559 (usafctmilrev 1986).

Opinion

DECISION

HODGSON, Chief Judge:

This is an appeal from a conviction of rape, forcible sodomy and three allegations of assault culminating in an approved sentence of a dishonorable discharge, 20 years confinement, total forfeitures and reduction to airman basic. The appellant is a senior non-commissioned officer with years of outstanding service. The complaining witness is the dependent wife of a serviceman from whom she was in the process of divorcing although at the time of her encounter with the appellant she was living with another airman. In affirming the conviction we deem it appropriate to discuss some of the assigned errors.

I

The victim’s husband and the appellant were assigned to the same organization and it was at squadron parties that the appellant and the victim first met. She and her husband had been to the appellant’s apartment for dinner several times, and on those occasions the appellant’s wife was present. After the complainant and her husband separated, she would see the appellant and talk to him — sometimes at the on-base convenience store where she worked. On 3 June, the appellant asked her over for dinner the next evening. She accepted and told her boy friend where she was going, which was about two blocks away. When she arrived at the appellant’s house at about 1730 hours and saw his wife was not there, she assumed Mrs. Lips was working and would be home later. While they were sitting in the living room, the appellant tossed her a magazine1 and said, “Here, read this while I go get ... some appetizers.” The article he wished read was entitled “Professor of Pleasure.” When she started reading, the appellant put his arm around her shoulder and a knife to her neck, saying, “Drop your pants, shirt and bra.” He bent her over the coffee table and tied her hands and legs to it. He then laid underneath her and performed an act of cunnilingus. Later, the appellant pointed a gun at her, said, “Are you ready for the appetizer” and indicated she was to perform fellatio on him. When she exhibited some reluctance, he told her, “[you have] until the count of five to get it in [your] mouth.”

While this episode was continuing the appellant put devices on her breasts described as “nipple clamps.” There was conflicting testimony as to how painful this apparatus was. He then hit her four or five times on the buttocks with a belt saying, “You can [perform fellatio] better than that.” This activity' stopped when the phone rang and the appellant answered. When he finished the conversation he brought her a drink and followed her into [681]*681the bathroom. In response to her query, “Why me?”, the appellant replied, “Because you’re the most perfect one — you’re separated from your husband and living with another man.” He indicated that “7 out 10 rapes go unreported.” Subsequently, the appellant cooked a meal for himself and the victim.

Later, they went into the bedroom and engaged in sexual intercourse and mutual oral copulation. During this episode the appellant attempted anal sodomy using a lubricant from a blue and white tube; he was unsuccessful.

The victim left the appellant’s apartment at about 2130 hours and went home. She said nothing about the incident to her boy friend until noon the next day when she told him about the incident and he convinced her to report the matter. Medical examination disclosed bruises on her buttocks “three fingers wide” and abrasions on her wrists consistent with being tied with a rope.

A search of the appellant’s apartment disclosed a knife, a gun, “nipple clamps” and ropes. Over defense objection the trial judge admitted a video tape and five magazines containing explicit sexual behavior between men and women. The dominant theme of these publications is the physical and sexual abuse of women.

The appellant admitted that his sexual encounter with the complaining witness occurred on the day alleged, but testified that the entire episode was initiated by her when she came to his apartment uninvited. It was she who agreed to do something “kinky” like asking him to “spank” her with a belt. It was her idea to use the “nipple clamps” and it was she who suggested anal sodomy which he declined. The appellant acknowledged he has a “bondage fantasy,” and that he had a lubricant in a blue and white tube at his apartment. He also stated the complaining witness suggested that “others” might enjoy this type of activity for money. She then demanded $200.00, and when he refused, threatened to tell his wife and otherwise harm his career. After he gave her only $60.00, she said, “You will pay.” He also offered testimony of the victim’s next door neighbor who stated she heard the victim say, “Don’t hit so hard,” “Quit, it hurts” and “Stop.” The witness attributed this conversation to some type of sexual activity.

Finally, the appellant offered extensive evidence as to his good character and reputation for truthfulness.

In rebuttal, the government established that it is not unusual for a rape victim to delay reporting the incident because of feelings of shame and belief that no one will accept what happened. Additionally, there was evidence by the victim’s exspouse and current partner that her sexual preferences did not include being beaten or physically abused.

II

The appellant contends the trial judge erred in admitting a sexually explicit video tape and similar literature found in his apartment. He argues that Mil.R.Evid. 404(b)2 does not apply as his possession of the seized material was lawful and not probative of any contested issue. He also urges that the prejudicial effect of the challenged evidence is enormous. See Mil.R. Evid. 403.

The appellant is correct in that possession of sexually explicit materials is lawful. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). He is also correct that the admission of such materials is prejudicial. But this is true of any relevant evidence, and in order to be admissible under Rule 404(b) the evidence [682]*682of “OTHER CRIMES, WRONGS OR ACTS” must: 1) Establish a matter in issue other than the accused’s propensity to commit the crime charged; 2) The other acts are similar enough to be relevant; 3) The evidence of the other acts is clear and convincing; and 4) The probative value of the other acts is not substantially outweighed by the danger of unfair prejudice. United States v. Tuchow, 768 F.2d 855 (7th Cir.1985); United States v. Beechum, 582 F.2d 898 (5th Cir.1978). To resolve this assigned error we must examine the record in light of the criteria just stated.

Mil.R.Evid. 404(b) states that evidence of other acts are admissible to establish “... proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The rule provides examples of bases for admission of other acts rather than an exclusive list. By decision we have included modus operandi, United States v. Barns, 16 M.J. 624 (A.F.C.M.R. 1983), and the accused’s consciousness of guilt, United States v. Borland, 12 M.J. 855 (A.F.C.M.R.1981), as other reasons for which other acts are admissible.

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Cite This Page — Counsel Stack

Bluebook (online)
22 M.J. 679, 1986 CMR LEXIS 2559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lips-usafctmilrev-1986.