

   
   
   
   U.S. v. Grier



UNITED STATES, Appellee
v.
Paul E. GRIER, Private First Class
U.S. Army, Appellant
 
No. 99-0547
Crim. App. 9700651
 
United States Court of Appeals for the Armed
Forces
Argued January 19, 2000
Decided May 12, 2000

CRAWFORD, C.J., delivered the opinion of
the Court, in which SULLIVAN, GIERKE, and EFFRON, JJ., and EVERETT, Senior
Judge, joined.

Counsel
For Appellant: Captain Katherine A. Lehmann
(argued); Colonel Adele H. Odegard, Major Scott R. Morris
(on brief); Colonel John T. Phelps, II and Major Leslie A. Nepper.
For Appellee: Captain Troy A. Smith
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief); Captain Kelly D. Haywood.
Military Judge: Robert F. Holland
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
In March 1997, a general court-martial composed
of officer members convicted appellant, Private First Class (PFC) Paul
Grier, contrary to his pleas, of one specification each of rape, consensual
sodomy as the lesser-included offense of forcible sodomy, and adultery,
in violation of Articles 120, 125, and 134, Uniform Code of Military Justice,
10 USC §§ 920, 925, and 934, respectively. Appellant was acquitted
of assault consummated by a battery, in violation of Article 128, UCMJ,
10 USC § 928. He was sentenced to a dishonorable discharge, 4 years
confinement, total forfeitures, and reduction to the grade of Private E-1.
The convening authority approved the sentence. By action of the Deputy
Assistant Secretary of the Army (Army Review Boards), dated February 12,
1998, the unexecuted portion of the sentence to confinement was remitted
and the dishonorable discharge was upgraded to a general discharge. The
Court of Criminal Appeals affirmed the findings of guilty and the adjudged
sentence on December 11, 1998, in an unpublished opinion.
We granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED AS A
MATTER OF LAW BY FAILING TO PROPERLY DEFINE THE LAW OF "CONSENT" AND "INTOXICATION"
FOR THE MEMBERS, WHERE THE MILITARY JUDGE ALSO FAILED TO INFORM THE MEMBERS
THAT THE LEGAL CONCLUSIONS USED BY THE CID [Criminal Investigation Command]
AGENT DURING APPELLANTS INTERROGATION WERE ERRONEOUS.
II. WHETHER THE MILITARY JUDGE, AND SUBSEQUENTLY
THE ARMY COURT, ABUSED ITS DISCRETION IN FINDING THAT THE EVIDENCE WAS
LEGALLY SUFFICIENT TO SUPPORT THE FINDING THAT APPELLANT COMMITTED RAPE,
IN LIGHT OF THE JUDGES INCORRECT INSTRUCTIONS ON THE LAW OF "CONSENT"
AND "INTOXICATION."

FACTS
Appellant was assigned to Fort Campbell, Kentucky,
with another PFC named Lewis. In spring and summer of 1996, appellant became
friends with PFC Lewis wife, Cherise. The Lewises were experiencing marital
difficulties and Ms. Lewis testified she went to appellant with her concerns
and for friendship. The two spent a fair amount of time together, to include
driving to Nashville, Tennessee, ostensibly with Ms. Lewis husbands knowledge,
for a weekend of dancing; and going to the mall, etc. Here agreement on
the facts ends and the two stories diverge as to the depths of this relationship.
Appellant contends that the relationship between
the two included oral sex in a car. He also asserts that he and Ms. Lewis
had sexual intercourse about half a dozen times, including the night of
a party in appellants room. Another witness testified (by stipulation)
to watching appellant and Ms. Lewis kissing at Ms. Lewis apartment, an
incident that appellant admitted. There was also a purported "love note"
passed from Ms. Lewis to appellant through her husband. This note contained
references to what appellant described as a code. The numbers 1 4 3 were
written at the bottom. Appellant asserted at trial that this was their
code for "I love you" (1 letter for "I," 4 letters for "love," and 3 letters
for "you."). The note also asked for him to remember a song, which appellant
explained was the song that was on the radio when the two had oral sex.
Ms. Lewis denied that the relationship was
anything but platonic. She does not remember the corroborated kiss at her
apartment, does not remember having oral sex with appellant, and denies
having intercourse with appellant on previous occasions. She admitted writing
the letter to appellant,1
but did not comment on the "secret" love codes contained in the letter.
All of these disputed incidents in the relationship
of appellant and Ms. Lewis lead to the night of June 6, 1996. On this evening,
the undisputed facts are as follows: On the 6th of June, Ms.
Lewis was packing her belongings to leave the marital abode. While she
was packing, appellant and his friend, PFC Gosney, came over to the house
and asked her to come to dinner with them and some female friends. The
three arrived at the restaurant at about 8 or 8:30 p.m. They stayed at
the restaurant for about 2½ hours and drank alcohol. They went to
a dance club after this and stayed drinking alcohol and dancing for about
one hour.
It is disputed how much alcohol Ms. Lewis had
to drink that evening. Ms. Lewis states she had 3 beers and 3 rum and cokes,
but that she gets drunk after only 2 beers. PFC Lewis, Ms. Lewis husband,
testified that she told him she had had 4 beers and 2 rum and cokes, and
that, in his experience with Ms. Lewis, this is enough to get her drunk,
but not enough to make her stumble around. Appellant contends Ms. Lewis
had 1-2 beers and 3 mixed drinks. He also testified that he had been with
Ms. Lewis on another occasion where she drank a 6-pack of beer and seemed
fine.
Also disputed is Ms. Lewis condition upon
leaving the dance club. Ms. Lewis testified that she was so drunk she could
not keep her eyes open. The last thing she testified to remembering was
seeing her apartment building, stumbling, and hearing appellant and PFC
Gosney say they would help her inside. A woman who was at the restaurant
and dance club with Ms. Lewis and appellant testified by stipulation that
she "didnt notice" Ms. Lewis having any problems walking or doing anything
else at the dance club that would make her seem drunk. PFC Lewis testified
that when Ms. Lewis later told him about the incident, she claimed "that
she didnt think" she had enough to drink to be intoxicated. Appellant
testified that Ms. Lewis needed no help getting around, was not stumbling,
opened the apartment door herself, and sat in the living room chatting
with appellant and PFC Gosney for a short while. Appellant also testified
that Ms. Lewis got up and went to the bathroom, claiming when she returned
that she had gone to vomit.
Ms. Lewis has no version of the events of that
night after seeing the apartment building. She testified that she woke
up the next morning naked, with male emissions on her body, leading her
to believe that someone had had sex with her that evening. Appellant has
a more detailed version of events. He testified that Ms. Lewis laid down
on her bed and that he laid next to her and she began kissing him. Appellant
then testified that Ms. Lewis began to initiate oral sex on him. At this
point, PFC Gosney walked into the room. Appellant testified that he asked
Ms. Lewis if she wanted to have sex with both men and she replied "yeah."2
Both men had sex with Ms. Lewis twice. Appellant testified that Ms. Lewis
seemed actively engaged in the activity, rubbing PFC Gosneys head and
back and saying to appellant, "F*** me harder." After having intercourse,
the three got dressed and drank some soda in the kitchen. Appellant testified
that Ms. Lewis became upset because she "said that she didnt think that
PFC Gosney and I would talk to her after this." Appellant assured her that
he would speak to her again and they embraced and kissed. Then he left
with PFC Gosney.
The bulk of the Prosecutions evidence against
appellant was impeachment evidence obtained from his sworn statement to
CID investigators about the incident. Ms. Lewis reported this rape on August
2, 1996, after telling her husband about the incident. Appellant was questioned
by CID on the 5th of August 1996. Appellant waived his rights
and gave a statement to the investigators. The statement included these
exchanges between CID Agent Wagner and appellant:


Q. Was she intoxicated?
A. She kept saying that she was intoxicated
on the way back to her house. I believe she was intoxicated.

* * *
Q. Did Mrs. LEWIS ever give verbal consent
to having sex with Brad [PFC Gosney]?
A. No.
Q. Do you think she wanted to have sex with
Brad?
A. No, she said she loved me.

* * *
Q. Do you think you took advantage of Mrs.
LEWIS?
A. Yes, I went along with the situation.
Q. In your honest opinion, do you think Mrs.
LEWIS was in a state of mind where she could give consent to having intercourse?
A. No.

* * *
Q. Why do you think Mrs. LEWIS did not give
consent to intercourse?
A. She was not in her right state of mind.

* * *
Q. What is your definition of Rape?
A. Forcing someone to have sex when they do
not want to or have intercourse with someone who is not in their right
state of mind.
Q. What do you mean not in their right state
of mind?
A. Not fully aware of the situation.
Q. By your definition, what do you call the
events on 7 Jun 96?
A: It is quite possibly a rape case.

* * *
Q. Do you have anything to add to this statement?
A. At the time this happened, I did not know
if a woman is not capable of giving consent, it is rape. Now I know it
is rape.


(This statement was not offered into evidence
at trial, but was used for impeachment purposes.)
Regarding the legal words that appellant used
in this confession, namely consent and intoxication, Agent Wagner testified
as to how the words were explained to appellant before he used them. With
regard to consent, Agent Wagner testified that he is "sure" he told appellant
that consent is a "verbal affirmation." He did not discuss with appellant
an indication of consent in any way other than verbally saying "yes." Regarding
intoxication, Agent Wagner testified that he told appellant if a person
is intoxicated, they are unable to consent. He did not explain to appellant
that there are different levels of intoxication and not all of these levels
mean a victim is unable to consent to sexual intercourse.
The Judge gave the following instructions after
all the evidence was presented:

When a victim is incapable of consenting
because she is asleep or unconscious or intoxicated to the extent that
she lacks the mental capacity to consent, then no greater force is required
than that necessary to achieve penetration.

* * *

If Cherise was incapable of giving consent
and if the accused knew or had reasonable cause to know that Cherise was
incapable of giving consent because she was asleep or unconscious or intoxicated,
the act of sexual intercourse was done by force and without her consent.

The judge reminded the members that "any references
by counsel to the law or to my instructions do not constitute instructions
on the law, which may only be given by me in my judicial capacity." Later,
he again reminded them that they were bound by his statements of the law;
that is, witnesses and counsel cannot tell members what the law is.

DISCUSSION
Appellant argues the judge incorrectly defined
"consent" and "intoxication" for the panel. Appellant contends this instruction
perpetuated the erroneous legal definitions the CID agent gave to appellant
during his interrogation, and but for this mistake, the panel would most
likely have found the evidence insufficient to convict. Final Brief at
15.
The Government argues appellant waived any
issue concerning the instructions given by not objecting at trial. United
States v. Maxwell, 45 MJ 406, 426 (1996); Answer to Final Brief at
8. In any case, the instruction contained no error, much less plain error.
The judge used instructions provided in the Military Judges Benchbook
(DA Pam. 27-9 at 430, 431 (30 Sep 96) for this situation. Answer at 18.
Instructional error is reviewed de novo.
Maxwell, 45 MJ at 425. Failure to object to an instruction before
the panel begins deliberation is waiver of the objection in the absence
of plain error. United States v. Cooper, 51 MJ 247, 252 (1999);
RCM 920(f), Manual for Courts-Martial, United States (1998 ed.). To be
plain error: (1) there must be an error; (2) the error must be plain (clear
or obvious); and (3) the error must affect the substantial rights of the
defendant. United States v. Powell, 49 MJ 460, 463 (1998).
We hold that there was no error and no prejudice
to appellants substantial rights. There was no objection to the instructions,
and the judge explained he was the sole source of law. Additionally, we
agree with the court below that "the phrase or intoxicated, in the context
of the descriptive terms preceding that phrase and the totality of all
the instructions given on this issue, could only be understood to address
intoxication to a degree rendering legal consent impossible." Unpub. op.
at 9.
The Government also argues the evidence was
legally sufficient to uphold appellants conviction. The standard for legal
sufficiency of the evidence is "whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We also hold that the evidence was sufficient
to have allowed a rational trier of fact to find the necessary elements
of the crime of rape beyond a reasonable doubt.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 After appellant
had made jokes to PFC Lewis about wanting to have sex with Ms. Lewis if
the marriage ever broke up, PFC Lewis told appellants NCOs and they told
appellant "to stay away from" the Lewis house. This "love note" refers
to appellants being told to stay away.
2
There is a discrepancy here because appellants sworn statement says that
Ms. Lewis did not reply.

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