              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
             K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JOSE D. DOMINGO
         SENIOR CHIEF ELECTRICIAN'S MATE (E -8), U.S. NAVY

                           NMCCA 201400408
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 8 July 2014.
Military Judge: CAPT B.L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, CA.
Staff Judge Advocate's Recommendation: CDR D.J. Jones,
JAGC, USN; Addendum: LCDR J.E. Dowling, JAGC, USN.
For Appellant: LT Christopher C. McMahon, JAGC, USN.
For Appellee: Capt Cory A. Carver, USMC; LT Amy Freyermuth,
JAGC, USN.

                           29 December 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge:

     A general court-martial consisting of officer members
convicted the appellant, contrary to his pleas, of one
specification each of aggravated sexual assault, abusive sexual
contact, and adultery, in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934.1 The
members sentenced the appellant to confinement for eight years
and a dishonorable discharge. The convening authority approved
the sentence as adjudged and, except for the discharge, ordered
it executed.

     The appellant alleges four assignments of error (AOE).
First, that the military judge committed reversible error when
she denied the appellant’s request for an instruction on mistake
of fact as to consent. Second, that trial counsel’s improper
arguments compounded the military judge’s instructional error
and deprived the appellant of a fair trial. Third, that the
evidence admitted at trial was legally and factually
insufficient to support convictions of the Article 120, UCMJ,
offenses. And, fourth, that the military judge erred in
excluding letters and text messages from the victim to the
appellant and his wife.2 We find merit in the first AOE and will
provide a remedy in our decretal paragraph.
                            Background

     Personnel Specialist Third Class (PS3) FF3 and her family
moved from the Philippines to the United States in 2010. In
December of that year, PS3 FF and her sister moved to San Diego,
California to live with the appellant (their biological uncle),
his wife, and their two sons. The two young women lived with
the appellant and his family for approximately six months until
they moved into their own apartment a few blocks from the
appellant’s home.

     Starting in the fall of 2011, when PS3 FF was 17 years old,
and continuing until the following summer, the appellant and PS3
FF had a number of sexual encounters, including both vaginal and
oral sex. Their descriptions of these events are quite
different. PS3 FF testified that she did not want to
participate in sexual activity with the appellant, while the
appellant testified that they were having a fully consensual
affair.


1
   The appellant was acquitted of one specification of assault consummated by
a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928.
2
   This last assignment of error is raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
   During the period of the alleged offenses, the victim was a civilian. She
subsequently enlisted in the United States Navy and was, at the time of
trial, a third class petty officer. For clarity, she will be referred to as
PS3 FF throughout this opinion.
                                      2
     PS3 FF testified that she had initially told the appellant
that she did not want to have sex with him, and that, when she
said “no” during their first encounter, the appellant stopped.
During later incidents when the appellant attempted to have
vaginal sex with her, she did not refuse, did not say no, and
did not physically attempt to stop him.

     PS3 FF testified that when the appellant first requested
oral sex, she refused. She stated that appellant then grabbed
her head and put his penis in her mouth. For the subsequent
incidents of oral sex, however, she stated she neither refused
nor otherwise expressed her unwillingness to participate.

     Explaining her lack of resistance, PS3 FF stated she was
fearful of her uncle and thought that he would become aggressive
if she refused. PS3 FF said this fear was rooted in her having
observed the appellant forcefully disciplining his children.
PS3 FF never outwardly expressed this fear, and there is no
evidence indicating the appellant was aware of her fear.

     Throughout the period of these sexual encounters, PS3 FF
continued to visit the appellant’s home, accompany him to run
errands alone, and, on at least one occasion, spend the night at
the appellant’s home while his wife and children were out of
town. PS3 FF testified that she did all these things because
she did not want to make the appellant’s wife suspicious. She
stated she was also afraid that, if she reported the assaults,
she would either not be believed or would be blamed for causing
her aunt to divorce the appellant.

     At trial, the appellant testified that PS3 FF willingly
participated in their encounters. He stated that she initiated
oral sex with him and would often touch his penis while they
were driving in his car. He testified that whenever PS3 FF
indicated that she was not interested in having sex he would
stop. He denied ever forcing her to engage in any sexual
activity. The appellant testified that he believed all of the
sexual acts were consensual.

     After the presentation of evidence, defense counsel
requested that the military judge instruct the members on the
defense of mistake of fact as to consent. The military judge
denied this request, stating:

    I don’t believe the evidence has raised the mistake of
    fact on the part of the accused concerning whether or
    not the victim consented. The evidence in this case,

                                3
       while I understand that the defense position as you
       indicated in the 802 is that she didn’t say no or
       didn’t resist, your theory--the defense theory,
       including through your client’s own testimony, was
       that this was a consensual relationship that occurred
       over a long period of time, not a one-time incident.
       His testimony was that it was consensual, and even if
       the cross-examination had her saying it wasn’t
       consensual or it was--there was no “no” said by her,
       in this court’s opinion that does not raise the
       mistake of fact of--as to consent in this case.4

       The trial defense counsel responded:

       [S]ome evidence has been raised as to mistake of fact
       as to consent. The alleged victim testified on the
       stand that she did not fight back, she didn’t say no.
       Our client testified that he believed she was
       consenting. If the members believe her testimony that
       she didn’t fight back, they could fairly believe that
       she didn’t fight back and that [the appellant]
       believed mistakenly that she was consenting. Without
       this instruction--if they believe that, that he
       mistakenly believed that she was consenting then he
       should be found not guilty. Without that instruction,
       they will not be able to do that.5

                             Discussion

      “Whether a panel was properly instructed is a question of
law reviewed de novo.” United States v. Stanley, 71 M.J. 60, 62
(C.A.A.F. 2012) (citation omitted). “A military judge must
instruct members on any affirmative defense that is ‘in issue.’”
United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F. 2011)
(citation omitted). “[A]n affirmative defense is ‘in issue’
when some evidence, without regard to its source or credibility,
has been admitted upon which members might rely if they chose.”
Stanley, 71 M.J. at 63 (citation and internal quotation marks
omitted).

     When deciding whether to give a mistake-of-fact
instruction, the military judge may consider “[t]he defense
theory at trial and the nature of the evidence presented by the
defense,” although neither is dispositive. United States v.
4
    Record at 814.
5
    Id. at 814-15.
                                  4
Hibbard, 58 M.J. 71, 73 (C.A.A.F. 2003) (citation omitted).
“Any doubt whether an instruction should be given should be
resolved in favor of the accused.” Id. (citations and internal
quotation marks omitted).

      The affirmative defense of mistake of fact as to consent,
found in RULE FOR COURTS-MARTIAL 916(j)(3), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.), requires that the “mistake must have
existed in the mind of the accused and must have been reasonable
under all circumstances.” Thus, the question is whether there
was some evidence admitted that would support finding that (1)
the appellant honestly held the mistaken belief, and (2) the
mistake was objectively reasonable. “The test is similar to
that for legal sufficiency,” in that the military judge must
make this determination by viewing the evidence in a light most
favorable to the accused. Schumacher, 70 M.J. at 390 (citations
omitted). When evaluating the reasonableness of any such
mistaken belief, we look at “the totality of the circumstances
at the time of the offense.” Hibbard, 58 M.J. at 75.

     Accordingly, we begin our analysis by examining whether the
defense of mistake of fact was raised at trial——either by the
defense theory, the evidence admitted, or both.

Defense Theory.

     In his opening statement, the civilian defense counsel
(CDC) stated the evidence would show that all the sexual
activity between the appellant and PS3 FF was consensual,
telling the members that “[n]o other explanation will make
sense[.]”6 He then explained the evidence would show that PS3 FF
only reported the incidents and claimed they were nonconsensual
as part of a scheme to obtain transfer orders to be nearer to
her fiancé in Virginia. The CDC in no way indicated there was a
possibility that his client was mistaken as to whether PS3 FF
consented to the activity. Thus, it appears the defense’s
theory at the trial’s outset was purely one of consent, a fact
that supports the military judge’s refusal to give the mistake-
of-fact instruction.

     During its case-in-chief, the defense offered letters sent
from PS3 FF to the appellant and his wife purportedly describing
how happy PS3 FF was to receive orders to a ship home-ported in
San Diego. In arguing for their admission, the CDC said the


6
    Id. at 319.
                                   5
letters evidenced PS3 FF’s “motive to fabricate the entire case
. . . which has been our theory from the start.”7

     In his closing argument, CDC focused solely on whether PS3
FF consented: “She can consent, she could have consented, and
she did consent. That’s what happened in this case.”8 This
arguably provides post hoc support for the military judge’s
decision on the instruction, as it shows the theory argued by
the defense did not include mistake of fact as to consent.

     Taken together, it appears the military judge was correct
in finding that the sole defense theory was that all the sexual
activity was consensual. But weighing against this is the fact
the CDC requested a mistake-of-fact instruction. Counsel’s
request for such an 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.” United States v. DiPaola,
67 M.J. 98, 102 (C.A.A.F. 2008) (citation omitted). The CDC’s
argument to the military judge regarding the requested
instruction, supra, indicated the intent to do more than simply
challenge the factual issue of consent.   And we do not know
what closing argument the counsel would have made but for the
judge’s ruling.

     With this less than conclusive assessment of the defense
theory, we now turn to the evidence admitted at trial.

Nature of the Evidence.

     The appellant’s testimony described a consensual, fully
reciprocal romantic relationship between PS3 FF and himself.
While there is little evidence in the record that corroborates
his testimony,9 the appellant clearly conveyed that he believed
the sexual encounters with PS3 FF were consensual:



7
   Id. at 785. Although we fail to see how the letters in any way evidence a
motive to fabricate, this exchange with the military judge is relevant in
that it shows that the defense’s theory of consent was based, in part, on the
assertion that PS3 FF was simply lying regarding her lack of consent.
8
    Id. at 869.
9
   The appellant’s wife testified that she stumbled upon her husband and PS3
FF “kissing and hugging,” and described PS3 FF as “really responding” to the
appellant’s kisses, as if they were in a “relationship.” Record at 775-76.


                                      6
       CDC: Do you believe that she was a willing
       participant?
       Appellant: Yes, Sir.10

       CDC: On all the occasions or any of the occasions
       that you had sexual relations with PS3 F., did she
       ever give you any indication that she was not
       consenting?
       Appellant: Never Sir.11

       CDC: And how [did] she talk to you differently [after
       the initial episodes of kissing and heavy petting]?
       Appellant: She’s sweeter than the last time and . . .
       you know how you feel like when somebody actually
       looks for you and talk to you differently.12

     The appellant did not deny that the sexual acts occurred.
In fact, he admitted to more encounters than PS3 FF alleged.
But he was adamant in saying he believed all the encounters were
consensual. Other than PS3 F’s testimony, there is nothing in
the record that indicates he did not hold this belief.

     Evidence of the appellant’s belief was not limited to his
own testimony. While questioning the investigator who initially
interviewed the appellant, the Government elicited testimony
that the appellant “believed [PS3 FF] liked having sex with him
. . . it was something he believed.”13 The same witness agreed
with the CDC under cross-examination that the appellant
“believed that she enjoyed the sex.”14 In anticipation of this
testimony, the trial counsel even quoted during his opening
statement comments the appellant allegedly made to the
investigator. Among these quotes was, “I think she’s attracted
to me.”15

      Although the members ultimately disbelieved the
appellant’s version of events, there was more than “some”

10
     Record at 650.
11
     Id. at 655.
12
     Id. at 679.
13
     Id. at 498.
14
     Id. at 544.
15
     Id. at 317.


                                  7
evidence presented indicating the appellant honestly believed
PS3 FF consented. The next question, then, is whether there was
some evidence that this belief was reasonable.

     Under cross-examination, PS3 FF admitted the following:

     a. the appellant never threatened her, hurt her, or was
angry with her;

     b. the two times PS3 FF said “no” to the appellant, they
did not have sex;

     c. on the occasions when sexual intercourse occurred, she
did nothing to indicate she was not consenting;

     d. she continued to accompany the appellant alone on
various errands; and,

     e. she continued to visit the appellant’s home several
times each week during the period in which the alleged sexual
assaults were occurring.

     We find that this testimony, along with the appellant’s
statements that PS3 FF continued to act in a friendly manner
towards him, constitutes “‘some evidence’ of a mistake of fact
that the panel could attach credit to if it so desired.”
DiPaola, 67 M.J. at 102. And we find no corroborative or
undisputed evidence in the record that makes such a mistaken
belief by the appellant objectively unreasonable.16

     As we find some evidence that the appellant actually
believed PS3 FF consented to the sexual acts and that the
members could have found such a belief was reasonable under the
circumstances, we conclude that the military judge erred in
denying the requested instruction. We now test for prejudice.

Prejudice.

     The Court of Appeals for the Armed Forces has applied
the following test to a military judge’s failure to provide
a required mistake-of-fact instruction:

          Once it is determined that a specific instruction
     [was] required but not given, the test for determining
16
   Although the incestuous nature of the sexual acts shocks this Court, this
fact alone does not make it unreasonable for the appellant to have believed
that PS3 FF consented to the acts.
                                      8
    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).

DiPaola at 102 (quoting United States v. McDonald, 57 M.J.
18, 20 (C.A.A.F. 2002)).

     The evidence of guilt in this case was far from
overwhelming. PS3 FF’s testimony was remarkable for her lack of
memory regarding key details. The members were presented with
little corroborative evidence to support one version of events
over the other.

     The Government’s theory was that all of the sexual activity
between the appellant and PS3 FF was nonconsensual, while the
defense argued that all the activity was done with PS3 FF’s full
consent. The evidence at trial, however, offered a third option
upon which the members could have based a verdict——that PS3 FF
did not consent, but the appellant reasonably believed she did.
As the military judge’s refusal to instruct the members that
this third possibility constituted a defense, we cannot say this
error was harmless beyond a reasonable doubt.

                           Conclusion

     The findings for Specifications 1 and 2 of Charge I and the
sentence are set aside. The remaining findings are affirmed.
The record is returned to the Judge Advocate General for remand
to an appropriate convening authority with a rehearing
authorized.

    Senior Judge BRUBAKER and Judge MARKS concur.

                             For the Court



                             R.H. TROIDL
                             Clerk of Court



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