              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39224
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                          Michael J. RICH
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 26 September 2018
                          ________________________

Military Judge: Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 60 days, re-
duction to E-2, and a reprimand. Sentence adjudged 21 December 2016
by GCM convened at Grand Forks Air Force Base, North Dakota.
For Appellant: Major Melissa Biedermann, USAF; Major Patricia En-
carnación Miranda, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major J.
Ronald Steelman III, USAF; Mary Ellen Payne, Esquire.
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges HUYGEN and POSCH joined.
                          ________________________

                 PUBLISHED OPINION OF THE COURT
                          ________________________

HARDING, Senior Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of a single specification of sexual assault by false pre-
tense, in violation of Article 120(b)(1)(D), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920(b)(1)(D). Specifically, Appellant was found guilty of
                         United States v. Rich, No. ACM 39224


committing a sexual act upon Airman First Class (A1C) CS by concealing his
identity and thereby inducing her to believe that he was another person, spe-
cifically, her boyfriend, A1C BK. 1 Appellant was sentenced to a dishonorable
discharge, confinement for 60 days, reduction to the grade of E-2, and a repri-
mand. The convening authority approved the adjudged sentence, but waived
the mandatory forfeiture of pay and allowances during confinement for the
benefit of Appellant’s dependents.
    Appellant raises three issues on appeal: (1) whether the military judge’s
instructions regarding the term “concealment” impermissibly relieved the Gov-
ernment of its burden to prove every element of the offense beyond a reasona-
ble doubt; (2) whether the military judge erred by failing to instruct the court
members on the defense of mistake of fact; and (3) whether the military judge
abused his discretion by excluding evidence under Military Rule of Evidence
412. 2 In resolving the alleged instructional errors, we review the elements of
the offense of sexual assault by false pretense and the underlying theory of
criminal liability and conclude sexual assault by false pretense is a specific
intent offense. We find the military judge did not abuse his discretion by
providing the members with a definition of concealment or by instructing them
that a permissive inference of concealment could be drawn based on evidence
of silence by Appellant. The military judge did err, however, by failing to in-
struct the members on the defense of mistake of fact. Because this instructional
error was not harmless beyond a reasonable doubt, we set aside the finding
and the sentence.

                                     I. BACKGROUND
    After spending a Friday night frequenting restaurants and bars in the sis-
ter cities of Grand Forks, North Dakota, and East Grand Forks, Minnesota,
three Airman assigned to Grand Forks Air Force Base (AFB), North Dakota—
A1C CS, A1C BK, and Appellant—all arrived at the Appellant’s off-base apart-
ment shortly after 0200 hours on 20 February 2016. A1C CS and her boyfriend,
A1C BK, who both lived in the dormitories on Grand Forks AFB, had previ-
ously accepted Appellant’s offer to sleep at his apartment instead of returning
to the base after a night of drinking alcohol. Shortly after the group’s arrival
at Appellant’s apartment, Appellant went upstairs to his bedroom to sleep
while A1C CS and A1C BK shared a couch downstairs. In less than three hours,



1 The specification also alleged Appellant induced A1C CS to believe he was another
person by “artifice” and “pretense.” The members excepted those words from the spec-
ification, finding Appellant guilty of “concealment” only.
2   Given our resolution of the instructional error, we do not address this issue.


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                     United States v. Rich, No. ACM 39224


Appellant was due to report to Grand Forks AFB for weapons training in con-
junction with an upcoming deployment.
    A1C CS was uncomfortable and unable to sleep on the downstairs couch
with A1C BK. The couple had been arguing earlier that night and in the pres-
ence of Appellant. After what A1C CS thought was the passing of sufficient
time, she requested A1C BK go wake Appellant to ensure Appellant made it to
base on time for his training. A1C BK went upstairs, woke Appellant, and then
returned downstairs. Hearing nothing to indicate that Appellant was actually
stirring, A1C CS again sent A1C BK to wake Appellant. A1C BK did so once
more and returned downstairs. Still hearing nothing, A1C CS sent A1C BK a
third time to rouse Appellant. A1C BK heard the shower running and returned
downstairs. Consistent with an earlier conversation among the three Airmen
that A1C CS and A1C BK could use Appellant’s bed after he left for training,
A1C BK and A1C CS went up to Appellant’s bedroom. A1C CS got into Appel-
lant’s bed while A1C BK, thinking it would be inappropriate to get into Appel-
lant’s bed with A1C CS while Appellant was still there, decided to go back
downstairs to sleep on the couch until Appellant left.
    When A1C CS was in Appellant’s bed, she was wearing, among other items
of clothing, “jeggings”—jeans-like leggings made of denim. A1C CS fell asleep
in Appellant’s bed, but soon woke up to the sensation of someone tugging on
her leggings. A1C CS testified that she believed A1C BK was doing the tugging,
but she could not actually see who it was because the only illumination was
moonlight coming through a window near the right side of the bed. According
to A1C CS, she spoke A1C BK’s name, but there was no response. Instead, A1C
CS continued to feel the tugging on her leggings, which she described as de-
signed to fit snug and tight around the body. Annoyed because the tugging
caused her entire body to move, A1C CS took the leggings off herself. As she
did so, her panties came off as well. Shortly thereafter, she felt a penis inserted
into her vagina. A1C CS testified that she again spoke A1C BK’s name but, as
before, there was silence. According to A1C CS, other than uttering her boy-
friend’s name one time after she felt a penis penetrate her vagina, she “just
laid there” while the intercourse lasted for up to five minutes. She testified
that the person having sex with her eventually leaned down to kiss her on the
mouth. It was at this point that she realized the person having sex with her
was not her boyfriend. She then pushed the person into the moonlight, saw his
face, realized it was Appellant, and pushed Appellant off of her. According to
A1C CS, Appellant then said, “Oh s**t. I am so sorry. I am so sorry. I’m drunk.
I thought you were my fiancé[e].”




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                     United States v. Rich, No. ACM 39224


                                 II. DISCUSSION
A. Sexual Assault by False Pretense
   1. A Specific Intent Crime
    At the outset we recognize that resolution of Appellant’s first two assertions
of error requires an assessment of the elements and specifically the mens rea
for the offense of sexual assault by false pretense. Appellant asserts that the
military judge erred by giving an instruction that the silence by Appellant may
constitute “concealment” as alleged in the specification. Specifically, the mili-
tary judge instructed the members that “[s]ilence when the Accused knows
that [a] victim is acting under a misapprehension as to the accused’s identity
may constitute concealment.” Although Appellant frames this error as reliev-
ing the Government of its burden to prove Appellant concealed his identity,
this instruction also implicates actual knowledge and thus the mens rea neces-
sary to commit the offense. Appellant asserts the military judge further erred
by not giving an instruction on mistake of fact for the Defense. In addition to
assessing whether some evidence raised mistake of fact, it matters whether
the mistake of fact, if it existed, would have negated the mens rea necessary to
commit the offense. To answer this question we must determine whether the
offense of sexual assault by false pretense is a specific intent crime—one that
necessarily includes elements of specific intent or knowledge—or only a gen-
eral intent crime. The mens rea matters to the instruction.
       If the ignorance or mistake goes to an element requiring premed-
       itation, specific intent, willfulness, or knowledge of a particular
       fact, the ignorance or mistake need only have existed in the mind
       of the accused. If the ignorance or mistake goes to any other el-
       ement requiring only general intent or knowledge, the ignorance
       or mistake must have existed in the mind of the accused and
       must have been reasonable under all the circumstances.
Rule for Courts-Martial (R.C.M.) 916(j)(1). We conclude that the offense of sex-
ual assault by false pretense, Article 120(b)(1)(D), UCMJ, is a specific intent
offense.
      Article 120(b)(1)(D), UCMJ, in pertinent part, provides that “[a]ny person
. . . who . . . commits a sexual act upon another person by . . . inducing a belief
by any artifice, pretense, or concealment that the person is another person . . .
is guilty of sexual assault . . . .” The Manual for Courts-Martial, United States,
(2016 ed.) (MCM), pt. IV, ¶ 45.b(3)(d), captions this offense as “[s]exual assault
. . . [b]y false pretense” and provides two elements. The first element repeats
the statutory definition of a sexual act as penile penetration of the vulva, anus,
or mouth. The second element directly tracks the language of Article
120(b)(1)(D), UCMJ. The listed elements are: (1) “[t]hat the accused committed


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                     United States v. Rich, No. ACM 39224


a sexual act upon another person by causing penetration, however slight, of
the vulva or anus or mouth by the penis;” and (2) “[t]hat the accused did so by
inducing a belief by any artifice, pretense or concealment that the accused is
another person.” Neither Article 120, UCMJ, nor the 2016 MCM, pt. IV, ¶
45.b(3)(d), defines “inducing,” “artifice,” “pretense,” or “concealment.” The spec-
ification of sexual assault by false pretense alleged Appellant had committed
the offense by artifice, pretense, and concealment.
    We note there are other false pretense offenses contained within the puni-
tive articles of the UCMJ: larceny and wrongful appropriation by wrongfully
obtaining property in violation of Article 121, UCMJ, 10 U.S.C. § 921 (formerly
known as obtaining by false pretense), and obtaining services by false pre-
tenses in violation of Article 134, UCMJ, 10 U.S.C. § 934. The criminal objec-
tive of these offenses is to wrongfully obtain property or services, which would
otherwise be obtained with the property owner or service provider’s permission
or consent, by inducing a false belief by an owner or provider in order to do so.
The criminal objective of the offense of sexual assault by false pretense is to
induce a false belief by a person as to an accused’s identity in order to commit
a sexual act upon that person, who would otherwise have consented to the act
if the belief was true. We observe that while the criminal objectives are vastly
different between these offenses, the means of attaining the criminal objec-
tive—to induce a false belief—is the same. Thus, we find a review of the ele-
ments and definitions for the offenses of larceny and wrongful appropriation
by wrongfully obtaining property and services by false pretenses is highly in-
structive to a determination of what the mens rea of sexual assault by false
pretense is, and whether it is a specific intent crime.
     The aforementioned false pretense offenses of Articles 121 and 134, UCMJ,
all include specific intent to defraud as an element of the offense. In particular,
the elements of obtaining services by false pretenses in violation of Article 134,
UCMJ, are:
       (1) That the accused wrongfully and unlawfully obtained certain
       services from the victim;
       (2) That the obtaining was by falsely pretending to the victim
       that a certain fact is true;
       (3) That at the time of the obtaining the accused had knowledge
       of the falsity of the pretenses;
       (4) That the obtaining was with the intent to defraud;
       (5) That the services were of a certain value; and
       (6) That, under the circumstances, the conduct of the accused
       was to the prejudice of good order and discipline in the armed


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                     United States v. Rich, No. ACM 39224


       forces, of a nature to bring discredit upon the armed forces, or
       both.
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27–9 at 842 (10 Sep.
2014). Not only does this false pretenses offense include the specific intent to
defraud as an element of the offense, but the accused’s knowledge of the “falsity
of the pretenses” is an essential element of the offense.
    For an explanation of false pretense in the context of an offense under Ar-
ticle 121, UCMJ, we need look no further than the 2016 MCM, pt. IV, ¶
46.c(1)(e):
       False pretense. With respect to obtaining property by false pre-
       tense, the false pretense may be made by means of any act, word,
       symbol, or token. The pretense must be in fact false when made
       and when the property is obtained, and it must be knowingly
       false in the sense that it is made without a belief in its truth. A
       false pretense is a false representation of past or existing fact.
In addition to a false pretense for a larceny or wrongful appropriation offense
committed by obtaining, an intent to steal or defraud is required. While there
are obvious differences between each of these “obtaining” by false pretense of-
fenses, the tripartite sine qua non of each is (1) false pretense; (2) an accused’s
knowledge of the falsity of the pretense at the time of the obtaining; and (3)
the accused’s intent to defraud in order to obtain.
    Extending the approach of the “obtaining” offenses to the offense in this
case, we conclude that the offense of sexual assault by false pretense under
Article 120(b)(1)(D), UCMJ, necessarily includes: (1) a false pretense that the
accused was another person; (2) the accused’s knowledge of the falsity of the
pretense that he was another person; (3) the accused’s intent to induce a victim
into believing that the accused was another person; and (4) the victim’s false
belief that the accused was another person. Thus we conclude that sexual as-
sault by false pretense is a specific intent offense.
   2. Military Judge Instructs Knowledge and Specific Intent
    The military judge instructed the court members on the elements of the
offense of sexual assault by false pretense as follows:
       In order to find the accused guilty of this offense, you must be
       convinced by legal and competent evidence beyond a reasonable
       doubt: (1) That . . . the accused committed a sexual act upon [A1C
       CS], to wit: penetrating her vulva with his penis; and, (2) That
       the accused did so by inducing a belief by artifice, pretense, and
       concealment that the accused was another person.



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                     United States v. Rich, No. ACM 39224


    The military judge did not provide a definition of “inducing,” but did define
the terms “artifice,” “pretense,” and “concealment.” ‘“Artifice’ is a plan or idea
intended to deceive. ‘Pretense’ is an act of pretending. ‘Concealment’ is an act
of refraining from disclosure or hiding to prevent discovery.’” 3
    We find that the military judge’s instructions correctly and sufficiently re-
flected that the offense of sexual assault by false pretense is a specific intent
offense. While the military judge did not instruct on specific intent as an ele-
ment, in defining “artifice,” “pretense,” and “concealment,” he used words and
phrases—“intended to deceive,” “pretending,” “refraining from disclosure,” and
“hiding to prevent discovery”—that connote a specific intent. Thus Appellant’s
specific intent was an issue that the members had to resolve. The military
judge also instructed the members that “[s]ilence when the [a]ccused knows
that [a] victim is acting under a misapprehension as to the accused’s identity
may constitute concealment” (emphasis added), and thereby made the actual
knowledge of Appellant an issue as to concealment. 4 Having concluded that
sexual assault by false pretense is a specific intent offense and the military
judge’s instructions reflected this, we next consider whether the military judge
erred as Appellant asserts by providing the instruction on concealment or by
omitting a mistake of fact instruction.
B. Concealment Instruction
    Appellant objected at trial to the military judge’s findings instruction that
“silence . . . may constitute concealment” and now argues that this instruction
was error because it was “a presumption that permits but does not require the
jury to assume intent from an isolated act (that act of remaining silent) which
in turn prejudged a decision (that Appellant intended to conceal his identity)
that the members should have made on their own.” We disagree.
    We review a military judge’s decision to provide a non-mandatory instruc-
tion for an abuse of discretion. United States v. Barnett, 71 M.J. 248, 249
(C.A.A.F. 2012) (quoting United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F.
2005)). We review the propriety of the instructions given by a military judge
de novo. United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001) (citing
United States v. Maxwell, 45 M.J. 406, 424 (1996)). A “military judge has an
independent duty to determine and deliver appropriate instructions.” Barnett,
71 M.J. at 249 (quoting United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008)). While counsel may request specific “non-mandatory” instructions from


3The military judge adopted these definitions from People v. Leal (2009) 180 Cal. App.
4th 782, 789–90 [103 Cal. Rptr. 3d 351], involving a similar criminal statute.
4 The military judge likewise relied on Leal to draft the instruction that silence may
constitute concealment.


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                    United States v. Rich, No. ACM 39224


the military judge, the judge has substantial discretionary power in deciding
on the instructions to give. See Barnett, 71 M.J. at 253 (quoting United States
v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003)). Military judges may provide “ex-
planations, descriptions, or directions,” sua sponte, or “as may be necessary
and which are properly requested by a party.” R.C.M. 920(e)(7).
    As noted above, the military judge provided the following instructions:
“‘Concealment’ is an act of refraining from disclosure or hiding to prevent dis-
covery. Silence when the Accused knows that [a] victim is acting under a mis-
apprehension as to the accused’s identity may constitute concealment.” It is
this second instruction—on the issue of silence as concealment—that Appel-
lant asserts was essentially a mandatory presumption that relieved the Gov-
ernment of its burden to prove the element of inducement by concealment be-
yond a reasonable doubt.
    To determine whether there was error, we ask whether a reasonable mem-
ber could have interpreted the instruction to create a mandatory presumption
of wrongfulness in favor of the Government. See United States v. Brewer, 61
M.J. 425, 430 (C.A.A.F. 2005). We ask whether a reasonable member could
have interpreted the concealment instruction as a mandatory presumption, not
a permissive inference, that Appellant’s silence in response to A1C CS stating
her boyfriend’s name evidenced his intent to conceal his identity from her. We
conclude this instruction did not mandate a presumption, but instead ex-
plained a permissive inference the court members may possibly have drawn
based on evidence presented in the case.
    “Inferences and presumptions are a staple of our adversary system of fact-
finding.” County Court v. Allen, 442 U.S. 140, 156 (1979). Legal presumptions
are categorized as either permissive inferences or mandatory presumptions.
Francis v. Franklin, 471 U.S. 307, 314 (1985) (citations omitted). A mandatory
presumption, depending on whether it is a conclusive or rebuttable presump-
tion, either completely removes the presumed element once the predicate facts
have been proved or requires the jury to find the presumed element unless the
defendant convinces the factfinder that such a finding is unwarranted. Id. at
314 n.2. A permissive inference, on the other hand, “allows—but does not re-
quire—the trier of fact to infer the elemental fact from proof by the prosecutor
of the basic one and which places no burden of any kind on the defendant.”
Allen, 442 U.S. at 157 (citation omitted).
    The Constitution “prohibits the State from using evidentiary presumptions
in a jury charge that have the effect of relieving the State of its burden of per-
suasion beyond a reasonable doubt of every essential element of a crime.”
Franklin, 471 U.S. at 313 (citing Sandstrom v. Montana, 442 U.S. 510, 520–24




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                    United States v. Rich, No. ACM 39224


(1979)) (additional citations omitted). A mandatory presumption is a “trouble-
some evidentiary device[,]” as it carries the risk of relieving the Government of
its burden. Allen, 442 U.S. at 157. The Supreme Court has stated the converse:
       A permissive inference does not relieve the State of its burden of
       persuasion because it still requires the State to convince the jury
       that the suggested conclusion should be inferred based on the
       predicate facts proved. Such inferences do not necessarily impli-
       cate the concerns of Sandstrom. A permissive inference violates
       the Due Process Clause only if the suggested conclusion is not
       one that reason and common sense justify in light of the proven
       facts before the jury.
Franklin, 471 U.S. at 314–15 (citing Allen, 442 U.S. at 157–63).
    The instruction at issue specifically stated that silence may constitute con-
cealment—a permissive inference. It did not mandate that if the members de-
cided Appellant was silent, they must presume he concealed. While the instruc-
tion could have been more explicitly given as a permissive inference emphasiz-
ing that it did not in any way relieve the Government of its burden of proof, we
nonetheless conclude that (1) no reasonable member would have interpreted
the instruction as a mandatory presumption and (2) the permissible inference
was an instruction justified by reason and common sense in light of the evi-
dence before the members. Thus, we find the military judge did not err by
providing it.
C. Failure to Instruct on the Defense of Mistake of Fact
   Appellant also asserts that the military judge erred by failing to instruct
the court members on the affirmative defense of mistake of fact. We agree and
have determined the error is not harmless beyond a reasonable doubt in this
case.
   1. Error
    The adequacy of a military judge’s instructions is reviewed de novo. United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (citations omitted). “The
military judge bears the primary responsibility for ensuring that mandatory
instructions . . . are given and given accurately.” United States v. Miller, 58
M.J. 266, 270 (C.A.A.F. 2003); see also R.C.M. 920(a). A military judge must
instruct the members concerning a defense if the record contains “some evi-
dence on each of these elements . . . .” United States v. Jenkins, 59 M.J. 893,
898 (Army Ct. Crim. App. 2004) (quoting United States v. Ferguson, 15 M.J.
12, 17 (C.M.A. 1983)) (additional citation omitted). A defense is reasonably
raised when “some evidence, without regard to its source or credibility, has
been admitted upon which members might rely if they chose.” United States v.



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                     United States v. Rich, No. ACM 39224


Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) (citation omitted); United States v. Wat-
ford, 32 M.J. 176, 178 (C.M.A. 1991) (noting a defense is reasonably raised
when there is “some evidence” to which the panel members “might attach cre-
dence”). Any doubt regarding whether an affirmative defense instruction is in
order should be resolved in favor of the accused. United States v. Davis, 53 M.J.
202, 205 (C.A.A.F. 2000) (citing United States v. Steinruck, 11 M.J. 322, 324
(C.M.A. 1981)).
   On two separate occasions the military judge directly asked trial defense
counsel whether a mistake of fact or other affirmative defense instructions
would be requested. On both occasions the trial defense counsel asked for a
mistake of fact instruction.
       MJ [Military Judge]: Defense Counsel, are you going to ask for
       a mistake of fact instruction? Is that fair?
       DC [Defense Counsel]: Consent and mistake of fact. We -- our
       position is that those are not necessarily defenses in this case.
       They are more of elements that have to be proven on the front
       end because it’s a -- it’s a broad charge, basically. So, the basis is
       specific intent.
    The Government offered no position on either occasion as to whether a mis-
take of fact instruction was raised by the evidence, despite the testimony from
A1C CS, the key Government witness, that, when she pushed off Appellant, he
said, “. . . I am so sorry. I am so sorry. I’m drunk. I thought you were my fi-
ancé[e].” (Emphasis added.)
    Later in the trial, after the military judge had provided the parties a draft
of the findings instruction by email, the military judge again asked if there
were any defenses raised by the evidence that should be included in the in-
structions. Appellant’s trial defense counsel responded as follows:
       Your Honor, I have not had a chance to look at the instructions
       you sent out honestly. However, with regard to mistake of fact,
       we believe it would be an appropriate defense -- we believe it is
       wrapped into the charge itself, the way that it is charged. They
       [the Government] have to prove that our client did not have a
       mistake of fact, so some language regarding mistake of fact may
       be appropriate.
   The military judge responded:
       I don’t know if mistake of fact defense works in this fact pattern.
       I am trying to work through it. What you will see in tonight’s, is
       some language about voluntary intoxication. I am going to talk



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                    United States v. Rich, No. ACM 39224


       to trial counsel about it in a moment. It’s not necessarily an of-
       fense that involves a specific intent, but it does involve induce-
       ment, which indicates some kind of knowledge on behalf of your
       client. Not maybe specific intent, as we view it in premeditation,
       or something like that, but at least knowledge that your client
       has engaged in an artifice, concealment, trickery, or something
       like that.
   Ultimately, the military judge instructed on the defense of consent and pro-
vided a voluntary intoxication instruction, which advised the members that
they “should consider the effect of intoxication, if any,” to determine “whether
[Appellant] engaged in the inducement.” The judge did not however give a mis-
take of fact instruction.
    Notwithstanding the lack of an instruction on the defense of mistake of fact,
both the trial counsel and Appellant’s trial defense counsel discussed mistake
of fact in their respective closing arguments. Trial counsel directly addressed
a theory of mistake of fact based on a mistaken belief by Appellant that A1C
CS was his fiancée.
       Now, a third possibility is that the accused was mistaken. That
       he really thought this was his fiancée, and we’ve talked about
       that already members. That is not a real possibility. There is no
       way that this accused could [have] thought that his fiancée who
       lived in Canada who has just had a child was in his bed wanting
       to have sex with him. He could tell the difference. And he wasn’t
       too drunk to tell the difference. He certainly wasn’t too drunk to
       tug off her pants and put his penis inside of her.
   Appellant’s trial defense counsel, however, did not argue Appellant mistak-
enly believed A1C CS was his fiancée. The trial defense counsel argued that
Appellant’s mistaken belief was that A1C CS knew she was having sex with
him and consented to the sex act.
       Now, I want to talk a little bit about [Appellant] and his mistake
       of fact as to consent. He walks in his room and the last thing he
       remembers, that last thing that happened to him with regards
       to Airman [CS] is, she was downstairs arguing with Airman
       [BK]. They had been arguing all night. He offered them to sleep
       in his bed. And they slept on the couch. Airman [BK] comes and
       wakes him up. He gets in the shower. When he comes into his
       bedroom, she is in his bed alone. Not the guest bedroom, but in
       his bed. And he starts to have sex with her. She helped him take
       her pants off. What was he supposed to do? She says she said




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                    United States v. Rich, No. ACM 39224


       [BK]. But hindsight for her, she was trying to save her relation-
       ship. I don’t know that I can blame her for wanting to save her
       relationship.
       ....
       A full grown man is on top [of] you with his penis inside of you.
       And his weight is on you. You don’t think that wakes you up?
       You don’t think she was like, I know what’s going on now. I know
       who is on top of me now. No screaming, no fighting, no injuries.
       We talked about the injury. She indicated she never fought with
       him. And if you think that she went downstairs screaming, if you
       think that the dog didn’t flip out? They finished having sex. She
       didn’t stop it. They just had sex, and he ejaculated in her. So,
       let’s look at when there is a reasonable doubt with regards to his
       mistake of fact as to consent. Well, obviously, all of the reasons
       for consent are reasons that he too would believe, wait a second,
       she consented to this.
    Regardless of the differing theories argued by counsel, we need look no fur-
ther than A1C CS’s testimony and the statement she attributes to Appellant—
“I thought you were my fiancé[e]”—to find “some evidence, without regard to its
source or credibility,” that was admitted and that the court members may have
relied upon if they chose to do so. Even without this testimony of A1C CS, the
uncontroverted evidence of A1C CS’s assistance in removing her leggings and
panties, combined with up to five minutes of sexual intercourse during which
A1C CS did not manifest a lack of consent, provided sufficient evidence to rea-
sonably raise the defense of mistake of fact. Notwithstanding the evidence pre-
sented, the arguments of both trial and defense counsel regarding mistake of
fact put the mistake of fact issue squarely before the members. Finally, any
doubt regarding whether an affirmative defense instruction was in order
should have been resolved in favor of Appellant, and an instruction given as
requested by the Defense. Davis, 53 M.J. at 205 (citing U.S. v. Steinruck, 11
M.J. 322, 324 (C.M.A. 1981)). It was not. For all these reasons, we conclude
that the military judge erred by not providing an instruction on the defense of
mistake of fact.
   2. Prejudice

    “Where an instructional error raises constitutional implications, this
Court has traditionally tested the error for prejudice using a ‘harmless beyond
a reasonable doubt’ standard.” United States v. Davis, 73 M.J. 268, 271
(C.A.A.F. 2014) (citing Dearing, 63 M.J. at 482). “Whether the error is harmless
beyond a reasonable doubt is a question of law that we review de novo.” United
States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004) (citation omitted). The


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                    United States v. Rich, No. ACM 39224


test for determining if the constitutional error is harmless is “whether it ap-
pears ‘beyond a reasonable doubt that the error complained of did not contrib-
ute to the verdict obtained.’” United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). In
this case, to assess harmlessness, we ask whether a rational panel could have
found Appellant not guilty if they had been instructed properly. Davis, 73 M.J.
at 273. We find that a rational panel, properly instructed, could have.

    We next turn to what a proper instruction on the defense of mistake of fact
would have been in this case. As discussed above, sexual assault by false pre-
tense is a specific intent offense. Further, the permissive inference instruction
provided by the military judge—“[s]ilence when the Accused knows that [a]
victim is acting under a misapprehension as to the accused’s identity may con-
stitute concealment[ ]”—placed at issue Appellant’s actual knowledge as to
A1C CS’s false belief that Appellant was her boyfriend. It is clear that Appel-
lant’s specific intent and actual knowledge were issues for the members to re-
solve. Whether a mistake by Appellant went to one of those issues is a separate
question. We find the asserted mistakes did go to Appellant’s specific intent
and actual knowledge and any such a mistake would negate the mens rea re-
quired to commit the offense charged—sexual assault by false pretense. Thus
Appellant’s mistake of fact “need only have existed in [his] mind” to be a com-
plete defense. R.C.M. 916(j)(1).
    As noted above, the trial and defense counsel offered competing theories of
mistake of fact during their respective closing arguments. The trial counsel
sought to debunk the idea that Appellant mistakenly thought A1C CS was his
fiancée. Appellant’s trial defense counsel also argued mistake of fact, but as-
serted that Appellant mistakenly believed A1C CS knew it was him and con-
sented to the sexual intercourse. The confluence of the evidence supporting
mistake of fact, the closing arguments of both counsel on mistake of fact, and
the military judge’s permissive inference instruction on concealment, wherein
Appellant’s knowledge that A1C CS was “acting under a misapprehension” was
put at issue, unmistakably required a mistake of fact instruction be given in
this case—one where specific intent or actual knowledge is at issue. Thus, a
properly tailored instruction for mistake of fact where specific intent or actual
knowledge is at issue similar to what follows should have been provided to the
members:
       The evidence has raised the issue of mistake on the part of the
       accused concerning: (1) a belief that A1C CS was in fact his fian-
       cée and (2) a belief that A1C CS was aware of his identity imme-
       diately before and during the sexual act. I advised you earlier
       that to find the accused guilty of the offense of sexual assault by
       false pretense, you must find beyond a reasonable doubt that the

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                    United States v. Rich, No. ACM 39224


       accused did so by inducing A1C CS to believe by artifice, pre-
       tense, and concealment that the accused was another person.
       Implicit in the inducement element is that by artifice, pretense,
       and concealment the accused had the specific intent to induce a
       belief by A1C CS that he was another person. If however the ac-
       cused at the time of the offense was under the mistaken belief
       that A1C CS was in fact his fiancée or the mistaken belief that
       A1C CS was aware of his identity, then the accused could not
       have formed intent to induce A1C CS into believing that the ac-
       cused was another person and thus cannot be found guilty of the
       offense of sexual assault by false pretense. I also advised you
       earlier that silence when the accused knows that a victim is act-
       ing under a misapprehension as to the accused’s identity may
       constitute concealment. If however the accused at the time of the
       offense was under the mistaken belief that A1C CS was his fian-
       cée or under the mistaken belief that A1C CS was aware of his
       identity, then the accused did not know that A1C CS was acting
       under a misapprehension as to the accused’s identity and thus
       his silence would not constitute concealment.
       You are further advised that a mistake, no matter how unrea-
       sonable it might have been, is a defense. In deciding whether the
       accused was under either mistaken belief, you should consider
       the probability or improbability of the evidence presented on the
       matter. The burden is on the prosecution to establish the guilt
       of the accused. If you are convinced beyond a reasonable doubt
       that at the time of the alleged offense the accused was not under
       either mistaken belief, then the defense of mistake does not ex-
       ist.
See Benchbook at 1008.
    Although presented in arguments that A1C CS consented or that Appellant
mistakenly believed A1C consented, Appellant’s trial defense counsel implic-
itly argued that A1C CS either knew at the time it was Appellant she was
having sex with or that Appellant mistakenly believed A1C CS knew it was
him and consented. As to such a mistaken belief by Appellant, there simply is
no manner of legal gymnastics that can be performed to reconcile it with the
mens rea required to commit this offense. The members were instructed on
consent and thus had the proper legal framework to analyze the issue of con-
sent. But the members who convicted Appellant were not instructed on mis-
take of fact and as a result never informed that the mistake did not have to be
reasonable to be a defense or of the Government’s burden to prove beyond a
reasonable doubt that Appellant did not have that mistaken belief in order for


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                   United States v. Rich, No. ACM 39224


Appellant to be convicted. We find that a rational panel could have found Ap-
pellant not guilty if they had been instructed properly.

                             III. CONCLUSION
    The findings and the sentence are SET ASIDE. A rehearing as to the set-
aside findings and sentence is authorized. Article 66(e), UCMJ, 10 U.S.C. §
866(e).


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




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