United States v. Steward

18 M.J. 506

Opinions

DECISION

HODGSON, Chief Judge:

The accused’s sexual encounter in the barracks with the dependent wife of a non-commissioned officer resulted in his conviction of attempted rape. The approved sentence extends to confinement at hard labor for 12 months, forfeiture of $382.00 per month for 12 months, and reduction to airman basic. We affirm.

I

This was a vigorously contested trial which centered on whether the prosecutrix consented to group sex with the accused and his companion. The evidence at trial disclosed that Mrs. R.B. had an ongoing affair with Airman Sanchez, the accused’s roommate, and the two of them would use his room in the barracks for a meeting place. The accused was aware of this relationship because when R.B. came to the barracks he was asked to sleep elsewhere, i.e., the couch in the dayroom.

Much of what happened during the early morning hours of 21 February 1983 is not in dispute. R.B. testified that she met Sanchez in the barracks where they went to his room and had sexual intercourse. Subsequently she became ill and went to the bathroom across the hall. She returned to the darkened room and lay on the bed. As she did so someone touched her. Although she knew it was not Sanchez because it was a “black arm,” she was unable to identify the person as she was not wearing her glasses;

Footnotes

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* a second person also entered the room. These individuals were later identified as the accused and Airman Cheatham. R.B. stated that Cheat-ham sat on her, and when she screamed, he slapped her face and put his hand over her mouth. The accused was sitting by her legs rubbing her genital area. Eventually, Cheatham held her hands and had sexual intercourse with her. The accused, who was wearing a towel over his head, also had sexual intercourse with her.

Significant portions of R.B.’s testimony were corroborated by other persons who were present in the barracks or in the room. Airman First Class Crutcher, who was standing in the hall, heard R.B. say, “get lost,” and when he opened the door he saw the accused and Cheatham in the room. He left and later heard a scream coming from the room. He went back and saw Cheatham, who was holding her hands in his, on top of R.B. He heard the accused, who had a towel on his head, tell Cheatham to “get up;” he saw the accused “get on” R.B. Sanchez also saw Cheatham “on top” of R.B. and saw her crying. Additionally, Airman Ransford was in the room while the accused, Cheatham and Crutcher were there. He heard the accused tell Cheatham to “hurry up man,” and R.B. exclaim they “raped me.” Earlier, he had heard a scream coming from the end of the hall where the accused’s room was.

The accused admitted putting his arm around R.B., and her telling him to “get lost.” He admitted he was there while Cheatham had sexual intercourse with R.B., and he admitted getting on the bed with her. He denied having sexual intercourse with R.B. or fondling her in any way. He maintained that R.B. appeared to consent to sexual intercourse with Cheat-ham, and only when she pulled the towel from his head and covered herself, did he think otherwise. At that point he immediately got up from the bed. The defense also offered evidence tending to negate the testimony that any screams were heard in the barracks. The defense also established that R.B. had told conflicting versions of the incident. The medical examination of R.B. disclosed no indication of trauma or injury; however, further testimony was adduced this was not unusual in sexually active individuals.

II

Appellate counsel argue that the evidence does not establish beyond a reasonable doubt that the accused had the specific intent to rape the victim, and therefore the guilty finding as to attempted rape cannot stand.

Attempted rape consists of an overt act toward the commission of rape which amounts to more than mere preparation plus the concurrence of a specific intent to rape. United States v. Hobbs, 7 U.S.C.M.A. 693, 23 C.M.R. 157 (1957). The issue of intent, in this case the specific intent involved in an attempt to rape, is a question for the factfinders to decide from all the surrounding circumstances and evidence. Of course, this may be established circumstantially. See United States v. Garcia, 15 M.J. 685 (A.F.C.M.R.1983). The rule requiring the trier of fact to be convinced beyond a reasonable doubt as to the accused’s guilt does not mean that the evidence must be free of conflict. The court is entitled to believe the testimony of government witnesses as against those testifying for the accused. United States v. LeCappelain, 9 M.J. 562 (A.F.C.M.R.1980); United States v. Teeter, 12 M.J. 716 (A.C. M.R.1981). In our view, there are sufficient facts in this case from which the court could determine the accused’s intent, i.e., his presence in the room while his companion was having sexual intercourse with R.B.; his caressing and fondling R.B.; his admonition to Cheatham to “hurry up, man;” and finally his act of getting “on top” of the woman. True, he maintained that all of this was accomplished with R.B.'s consent, but the guilty finding resolved this issue against him. See United States v. Herron, 25 C.M.R. 888 (A.F.B.R. 1957); see also United States v. Reese, 24 C.M.R. 467 (N.B.R.1957). Weighing all the evidence and giving proper consideration to those who heard and saw the witnesses, we find the evidence established the accused’s guilt beyond a reasonable doubt. Article 66(c), U.C.M.J., 10 U.S.C. § 866(c).

III

The trial judge declined to give a defense requested instruction on mistake of fact. On appeal appellate counsel contend this was error as the accused was well acquainted with R.B.’s reputation for promiscuity; and this, coupled with the fact that group sex was apparently a routine occurrence with the accused’s peer group, might have led him to mistakenly believe that R.B. would participate in such an arrangement.

It is axiomatic that before a failure to instruct on a defense may be alleged as a ground for error, the evidence must show that the defense was reasonably raised. United States v. Short, 4 U.S.C. M.A. 437, 16 C.M.R. 11 (1954). Appellate counsel urge that because the accused’s companions discussed the possibility that R.B. might agree to group sex, the accused had a “very reasonable expectation” that this would come to pass. While the accused and his friends might have had high hopes of this event happening, there is no evidence that R.B. expressed a desire, verbal or otherwise, that she was willing to engage in this type of activity. To the contrary she made it clear to the accused that he was to “get lost” when he made his initial overture.

The issue before the court was whether R.B. consented to the accused’s attentions, and on this question the trial judge gave full and complete instructions. Mistake of fact was simply not raised. United States v. Mahone, 14 M.J. 521 (A.F.C.M.R.1982), pet. denied, 14 M.J. 454 (C.M.A.1982); United States v. Perry, 12 M.J. 920 (N.M. C.M.R.1982).

IV

In United States v. Sutton, 15 M.J. 235 (C.M.A.1983), the Court of Military Appeals dismissed all charges because the supervisory authority took 321 days to act on the case. This was in accord with their holding in United States v. Clevidence, 14 M.J. 17 (C.M.A.1982), where the supervisory authority required 313 days to take his action.

In both Sutton and Clevidence, supra, the Court of Military Appeals found prejudice in that post-trial delay hindered the accused in obtaining civilian employment.

In the case at bar, while the accused does not point to any prejudice resulting from the time taken to act on his record of trial, United States v. Banks, 7 M.J. 92 (C.M.A. 1979), he maintains he is entitled to the same remedy afforded those in Sutton and Clevidence, supra, because of the lengthy post-trial delay in processing his case, i.e., 129 days from the date of trial until the convening authority took his action.

We conclude that the convening authority’s action was not so tardy as to require dismissal of the charges. The allegations under review are serious and the record of trial exceeds 700 pages. The accused identifies no prejudice and our examination of the record confirms none. United States v. Milan, 16 M.J. 730 (A.F.C. M.R.1983); cf. United States v. Purdy, 15 M.J. 689 (A.F.C.M.R.1983) (delay of 167 days between the trial date and supervisory action held not prejudicial).

The remaining assigned errors have been examined and are resolved adversely to the accused. United States v. Kent, 9 M.J. 836 (A.F.C.M.R.1980). The findings of guilty and the sentence are

AFFIRMED.

FORAY, Senior Judge, concurs.

R.B.’s vision, uncorrected, was "20/400." She was able to see at 20 feet what a normal person could see at 400.