UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            HAIGHT, PENLAND, and WOLFE
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class BRICE A. MOORE
                          United States Army, Appellant

                                    ARMY 20150131

         Headquarters, United States Army Maneuver Center of Excellence
                      Charles A. Kuhfahl Jr., Military Judge
                     Charles C. Poche, Staff Judge Advocate


For Appellant: Major Andres Vazquez, Jr., JA; Major Brian J. Sullivan, JA.

For Appellee: Major Daniel D. Derner, JA.


                                    20 January 2016

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                                SUMMARY DISPOSITION
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HAIGHT, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of sexual assault, two specifications of abusive sexual contact,
and assault consummated by battery, in violation of Articles 120 and 128, Uniform
Code of Military Justice, 10 U.S.C. §§ 920 and 928 [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge. The convening
authority approved the adjudged sentence.

      Appellant’s case is before us for review under Article 66, UCMJ. This case
was submitted on its merits. Appellant personally assigned five issues pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which merits
discussion but not relief.

                                      DISCUSSION

      Appellant and AB, a 17-year old girl, had previously engaged in consensual
sexual activity. However, the evidence in this fully contested case showed beyond a
reasonable doubt that, on one occasion in January 2014, appellant committed a
MOORE – ARMY 20150131

sexual act, sexual contacts, and an assault consummated by a battery upon AB while
he believed she was asleep. Although the evidence compellingly proved that
appellant believed AB to be sleeping, she was, in fact, fully awake and only
pretended to be asleep during appellant’s criminal groping.

       The government did not charge appellant under an attempt theory for the
crime of committing a sexual act upon one the appellant knew or should have known
to be asleep. See United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014)
(appellant convicted of attempted sexual crimes when the “underlying facts were
that Appellant touched the victim’s breasts and penetrated her vagina while he
believed that she was sleeping”). Nor was appellant charged with any offense
requiring force. Instead, appellant was charged under a “bodily harm” or
nonconsensual touching theory. As such, appellant now contends that his
convictions are insufficient as the lack of consent or an absence of a mistake of fact
as to consent were not proven. In support of his assertion, appellant points out that
although AB was awake, she did not say “no,” she did not stop or resist him, nor did
she manifest her lack of consent.

        We write simply to elucidate again that a victim’s manifestation of
nonconsent is not required to prove a lack of consent. Even in cases prosecuted
under a prior version of Article 120, UCMJ, applicable in cases before 2007 and
which did require proof of force and lack of consent, our superior court emphasized
there was never an independent, affirmative duty on the part of a rape victim to
resist or “manifest her lack of consent in some positive manner.” United States v.
Watson, 31 M.J. 49, 52 (C.M.A. 1990). In Watson, the Court of Military Appeals
stated:

             It is bewildering, admittedly, how the military judge could
             seemingly have found such an independent, affirmative
             duty on the part of a rape victim. The explanation given
             in the Manual -- mere commentary at that -- in no way
             suggests such an independent duty. Obviously, where
             there is no manifestation of lack of consent, an inference
             may be drawn that the victim consented, or a reasonable
             inference may be raised that the accused was reasonably
             and honestly mistaken as to consent. But if there is no
             reasonable doubt of lack of consent and no reasonable
             doubt as to whether the accused was reasonably and
             honestly mistaken thereto, the lack-of-consent aspect of
             rape has been satisfied just as it has with all the lesser-
             included offenses.

Id. at 52-53. Our analysis of factual and legal sufficiency in this case is similar.



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MOORE – ARMY 20150131

       The government proved beyond a reasonable doubt that AB did not consent.
The defense and appellant, who testified under oath at his court-martial, fully
availed themselves of the mistake of fact as to consent defense. In fact, with respect
to the sexual encounter in question, appellant conceded, “I put her hand in my pants
and I moved her hand because she didn’t do anything” but then further testified that
he thought AB consented because “she gave me no reason to believe that she was not
okay with it. I can’t tell you what she thinks and what she doesn’t think. I can give
you that I thought she was alright with it.” Despite appellant’s assertion of his
belief that AB consented, the military judge found appellant guilty, necessarily
finding appellant’s mistake of fact defense to be disproved beyond a reasonable
doubt. The findings of guilty are correct in law and fact. See UCMJ art. 66(c).

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge PENLAND and Judge WOLFE concur.


                                       FOR THE COURT:
                                      FOR THE COURT:



                                      JOHN P. TAITT
                                       JOHNClerk
                                      Deputy P. TAITT
                                                 of Court
                                       Deputy Clerk of Court




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