                        UNITED STATES, Appellant

                                         v.

              Juan R. GUTIERREZ, Private First Class
                        U.S. Army, Appellee

                                  No. 08-5004
                         Crim. App. No. 20040596

       United States Court of Appeals for the Armed Forces

                          Argued March 17, 2008

                           Decided May 27, 2008

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., and BAKER, J., each filed
a separate dissenting opinion.

                                     Counsel


For Appellant: Captain Trevor B. A. Nelson (argued); Colonel
John W. Miller II, Major Elizabeth G. Marotta, and Captain Larry
W. Downend (on brief).

For Appellee: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief).

Military Judge:    Stephen R. Henley

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 08-5004/AR


     Judge STUCKY delivered the opinion of the Court.

     The Judge Advocate General of the Army certified an issue

to this Court under Article 67(a)(2), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000), asking whether the

Army Court of Criminal Appeals erred in concluding that trial

defense counsel was ineffective by waiving a mistake-of-fact

instruction to an assault consummated by a battery as a lesser

included offense to the charge of assault with the intent to

commit rape.   We hold that, even assuming trial defense

counsel’s performance was objectively unreasonable, Appellee was

not prejudiced from the lack of a mistake-of-fact instruction.

                                I.

     Private First Class (PFC) EM returned to her barracks room

after a night drinking at a local club.   She met Appellee in the

hallway and he offered to help her to her room.    She accepted

and Appellee walked her home.   PFC EM thanked Appellee as he

left, then laid on her bed fully clothed.    Appellee re-entered

PFC EM’s room, got into her bed and told her to wake up.

Appellee rolled PFC EM over and tried to kiss her.   Despite her

protestations and attempts to move away, Appellee continued to

kiss PFC EM and fondled her breasts and vagina.    When PFC EM

pretended to vomit Appellee backed off and left the room as PFC

EM got off the bed and fled toward the bathroom.




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United States v. Gutierrez, No. 08-5004/AR


     Appellee provided a written statement to investigators

admitting that he met PFC EM, that they were both intoxicated,

and that he helped her to her barracks room.   Appellee admitted

kissing PFC EM and touching her upper body.    According to

Appellee, PFC EM said, “No stop,” yet he “grabed [sic] her” and

“touched her body” and then stopped.

     At trial, Appellee was charged with assault with the intent

to rape PFC EM.   After hearing all the evidence, the trial

counsel asked the military judge to instruct on the charged

offense of assault with the intent to commit rape, as well as

two lesser included offenses, indecent assault and assault

consummated by a battery.   The defense counsel did not oppose

the request, and the military judge gave the requested

instructions.   The parties also agreed that it was appropriate

to instruct on mistake of fact regarding the assault with the

intent to commit rape and the lesser included indecent assault.

In discussing the affirmative defense, the military judge said

that “there doesn’t appear to be any mistake of fact instruction

with regard to battery” and asked the defense counsel if he

wanted the instruction.   The defense counsel said, “Your Honor,

I simply do not want to request one for the battery.”

     On appeal, Appellee submitted his case to the Army Court of

Criminal Appeals (ACCA) on its merits.   The ACCA specified an

issue asking whether the military judge erred in not sua sponte


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United States v. Gutierrez, No. 08-5004/AR


instructing the members on a mistake-of-fact defense as it

applied to the assault and battery lesser included offense.

United States v. Gutierrez, 63 M.J. 568, 569 (A. Ct. Crim. App.

2006).    On April 27, 2006, the ACCA set aside the findings and

sentence, finding that the military judge erred in not giving

the affirmative defense instruction, and that trial defense

counsel had not waived the instruction.   Id. at 574-75.

     In response to the ACCA decision, the Judge Advocate

General of the Army certified an issue to this Court asking

whether the ACCA erred in finding the trial defense counsel had

not affirmatively waived the mistake-of-fact instruction.

United States v. Gutierrez, 64 M.J. 374, 375 (C.A.A.F. 2007).

This Court reversed the ACCA decision and remanded the case to

that court, holding that the trial defense counsel’s declination

for a mistake-of-fact instruction constituted affirmative

waiver.   Id. at 378.

     On further review after remand, the ACCA specified an issue

asking whether trial defense counsel provided ineffective

assistance by waiving the mistake-of-fact instruction as it

applied to assault consummated by battery.   United States v.

Gutierrez, No. ARMY 20040596, slip op. at 2 (A. Ct. Crim. App.

Oct. 31, 2007).   The ACCA ordered trial defense counsel to

provide an affidavit answering specific questions regarding

trial tactics.    After receiving the affidavit, the ACCA held


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United States v. Gutierrez, No. 08-5004/AR


that Appellee’s counsel was ineffective for waiving the mistake-

of-fact instruction and they again set aside the findings and

sentence.   Id. slip. op. at 13-14.

     The Judge Advocate General of the Army has again certified

an issue to this Court, asking whether the ACCA erred in

concluding that trial defense counsel was ineffective for

waiving the mistake-of-fact instruction.

                                 II.

     Issues involving ineffective assistance of counsel involve

mixed questions of law and fact.       United States v. Paxton, 64

M.J. 484, 488 (C.A.A.F. 2007); United States v. Davis, 60 M.J.

469, 473 (C.A.A.F. 2005).   This Court reviews factual findings

under a clearly erroneous standard, but looks at the questions

of deficient performance and prejudice de novo.      Paxton, 64 M.J.

at 488; Davis, 60 M.J. at 473.

     This Court analyzes claims of ineffective assistance of

counsel under the test outlined by the Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), and considers (1)

whether counsel’s performance fell below an objective standard

of reasonableness, and (2) if so, whether, but for the

deficiency, the result would have been different.      Paxton, 64

M.J. at 488; see United States v. Jameson, 65 M.J. 160, 163

(C.A.A.F. 2007).   Appellee has the burden of demonstrating both

deficient performance and prejudice.      Paxton, 64 M.J. at 488.


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United States v. Gutierrez, No. 08-5004/AR


     This Court is not required to apply these tests in any

particular order.   United States v. Quick, 59 M.J. 383, 386

(C.A.A.F. 2004).    As the Supreme Court said in Strickland, “[i]f

it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.”    466 U.S. at 697.

In this case, we need not address whether counsel’s waiver of a

mistake-of-fact instruction constituted deficient performance

because Appellee has not carried his burden to demonstrate

prejudice.

     To show prejudice under the Strickland test, Appellee must

show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”   Id. at 694.    In demonstrating this

“reasonable probability,” Appellee must show a “probability

sufficient to undermine confidence in the outcome.”    Id.; see

Paxton, 64 M.J. at 488.   In other words, when a member

challenges his conviction based on ineffective assistance of

counsel, “the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.”    Strickland, 466 U.S.

at 695.

     The Supreme Court has said that “[t]he governing legal

standard plays a critical role in defining the question to be


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United States v. Gutierrez, No. 08-5004/AR


asked in assessing the prejudice.”   Id.    In this case, the ACCA

applied a “harmless beyond a reasonable doubt” test to assess

prejudice.   Gutierrez, No. ARMY 20040596, slip op. at 13.

However, the test for prejudice flowing from ineffective

assistance of counsel, and the burden for proving the existence

of prejudice, is substantially different from the “harmless

beyond a reasonable doubt” test applied to constitutional

errors.   United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F.

2005); United States v. Dominguez Benitez, 542 U.S. 74, 81-82

nn.7, 8 (2004) (recognizing a difference in who carries the

burden of proof between the “reasonable probability” test for

assessing prejudice in ineffective assistance of counsel cases

and the “harmless beyond a reasonable doubt” test for some

constitutional errors).   By applying a “harmless beyond

reasonable doubt” test for prejudice, the ACCA improperly

shifted the burden to the Government to prove that the defense

counsel’s waiver did not contribute to the guilty finding.

Gutierrez, No. ARMY 20040596, slip op. at 13-14.

     Applying the proper test for assessing prejudice, we look

at all the evidence before the factfinder to determine if

Appellee has met his burden to demonstrate a “reasonable

probability” that the factfinder’s decision would have been

different.   Strickland, 466 U.S. 695-96.   We hold that Appellee

failed to meet that burden.   The members found Appellee guilty


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United States v. Gutierrez, No. 08-5004/AR


of assault consummated by a battery, which requires proof that

Appellee did bodily harm to a certain person and that the bodily

harm was done with unlawful force or violence.      Manual for

Courts-Martial, United States pt. IV, para. 54.b.(2) (2005 ed.).

Appellee confessed to grabbing the victim’s arm and touching her

body after she told him to stop.       PFC EM’s testimony

corroborated his confession.   This evidence is sufficient to

convict Appellee of the assault consummated by a battery.

     Even if the military judge had given a mistake-of-fact

instruction as to assault consummated by a battery, it is just

as likely that the members would have convicted as it is that

they would have acquitted.   Thus, Appellee failed to carry his

burden to show a reasonable probability that the result would

have been different.   Unlike the two greater charges, evidence

of the assault consummated by a battery was not based solely on

PFC EM’s testimony, which the members appeared to find not

totally credible.   In her testimony PFC EM admitted that she was

intoxicated to the point that she stumbled and tripped, and that

she had lied to investigators.   She testified under a grant of

immunity.   These factors could have led the members to discount

her testimony and acquit of the charged offense of assault with

the intent to rape and the other lesser included offense of

indecent assault, especially when Appellee’s statement did not

admit to either offense.   The members did, however, have


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United States v. Gutierrez, No. 08-5004/AR


Appellee’s statement that he had “grabed [sic]” PFC EM and

touched her after she said “No.”

     The burden is on Appellee to show a reasonable probability,

one sufficient to undermine the confidence in the outcome, that

but for the defense counsel’s ineffectiveness in waiving the

instruction, he would not been convicted.    Strickland, 466 U.S.

at 694.   The fact that the members acquitted Appellee of the two

greater offenses does not, of itself, carry that burden.

                               III.

     We answer the certified question in the affirmative.     The

decision of the United States Army Court of Criminal Appeals is

reversed.   The record of trial is returned to the Judge Advocate

General of the Army for remand to the court for further review

pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).




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United States v. Gutierrez, 08-5004/AR


        EFFRON, Chief Judge (dissenting):

        Appellee was charged with assault with intent to commit

rape.    The military judge instructed the members on two lesser

included offenses, indecent assault and assault consummated by a

battery.    Defense counsel requested that the military judge

instruct the members on the defense of mistake-of-fact as to

consent with respect to the primary charge, as well as to the

lesser included offense of indecent assault.    Defense counsel

waived the mistake-of-fact instruction with respect to the

offense of assault consummated by a battery.    United States v.

Gutierrez, 64 M.J. 374, 375-76 (C.A.A.F. 2007).     The members

found Appellee not guilty of assault with intent to commit rape.

They found Appellee guilty of one of the two lesser included

offenses, assault consummated by a battery.

        The United States Army Court of Criminal Appeals concluded

that the actions of defense counsel, in waiving the mistake-of-

fact defense instruction with respect to the offense of assault

consummated by a battery, deprived Appellee of his

constitutional right to the effective assistance of counsel.

United States v. Gutierrez, No. ARMY 20040596, slip op. at 13-14

(A. Ct. Crim. App. Oct. 31, 2007).    The question before us is

whether the error was prejudicial.

        The two lesser included offenses at issue shared the common

elements of infliction of bodily harm with unlawful force or
United States v. Gutierrez, 08-5004/AR


violence by “touching [PFC EM’s] breasts and vagina with his

hands.”    For these common elements, the military judge provided

the same instructions for both of the lesser included offenses.

Each offense also involved the issue of whether Appellee

mistakenly believed that PFC EM consented to the touching at

issue.    Mistake-of-fact would have been a complete defense to

each offense.   See Gutierrez, 64 M.J. at 377.    As noted by the

court below, the record does not establish that defense counsel

had a reasonable strategic basis for waiving the mistake-of-fact

instruction for only one of the lesser included offenses:

assault consummated by a battery.     Gutierrez, No. ARMY 20040596,

slip op. at 10-13.

     The majority concludes that any error was not prejudicial,

relying on admissions in a pretrial statement made by Appellee.

United States v. Gutierrez, ___ M.J. ___ (8-9) (C.A.A.F. 2008).

I respectfully disagree.   The admissions in the pretrial

statement applied to all of the offenses, not just the offense

of which Appellee was found guilty -- assault consummated by a

battery.   The only offense of which Appellee was found guilty

was the offense for which the members did not receive a mistake-

of-fact instruction.   In that context, the court below correctly

concluded that Appellee demonstrated a reasonable probability

that the result of his court-martial would have been different

absent counsel’s inappropriate waiver.


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United States v. Gutierrez, No. 08-5004/AR


     BAKER, Judge (dissenting):

     I would decide this case on the basis of my separate

opinion in United States v. Gutierrez, 64 M.J. 374, 378

(C.A.A.F. 2007) (Baker, J., dissenting).   As a result, I would

affirm the decision of the United States Army Court of Criminal

Appeals, and therefore respectfully dissent.
