          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201700003
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                       EDWARD K. BROWN, JR.
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

           Military Judge: Major M.D. Sameit, USMC.
 Convening Authority: 3d Marine Aircraft Wing, Marine Corps Air
                      Station Miramar, CA.
  Staff Judge Advocate’s Recommendation: Major J.A. Cacioppo,
                              USMC.
    For Appellant: Lieutenant Jacob E. Meusch, JAGC, USN.
  For Appellee: Captain Brian L. Farrell, USMC; Major Kelli A.
                          O’Neil, USMC.
                     _________________________

                            Decided 2 July 2018
                          _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

  MARKS, Senior Judge:
   A military judge sitting as a general court-martial convicted the appellant,
contrary to his pleas, of a single specification of sexual assault in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920
                       United States v. Brown, No. 201700003


(2012).1 The military judge awarded 30 months’ confinement and a
dishonorable discharge. The convening authority approved the sentence as
adjudged and, except for the punitive discharge, ordered it executed.
    The appellant asserts two assignments of error. First, the government
failed to prove beyond a reasonable doubt that the victim did not consent to
sexual intercourse or disprove the mistake of fact defense beyond a
reasonable doubt. Thus the conviction is factually insufficient. Second, trial
defense counsel were ineffective for failing to challenge the admissibility of
the appellant’s statements and meaningfully cross-examine multiple key
witnesses.
  We find the appellant’s conviction for sexual assault factually insufficient
in light of evidence of a mistake of fact and set aside the findings and
sentence, and dismiss the sole charge and specification.
                                 I. BACKGROUND
   This case involves the single act of sexual intercourse that occurred in a
brief relationship between a Marine and a college student. The relationship
began in July 2015 when the appellant reached out to the college student,
JW, via social media. They had a common friend in JW’s ex-boyfriend, who
had been a member of the appellant’s unit. JW and the appellant exchanged
messages and talked on a video chat application before meeting in person in
late August 2015.
A. JW’s testimony
    The night of Monday, 31 August 2015, the appellant visited JW at her
apartment for the first time. The previous night, JW had gone to an urgent
care clinic after suffering a nose bleed. She had been diagnosed with
pharyngitis—a red and inflamed sore throat—and been directed to take
ibuprofen, acetaminophen, and an antibiotic commonly known as a Z-pack.
Around 8:00 p.m. on Monday night, JW and the appellant agreed that he
would come to her apartment that night, and she gave him her address. JW
testified that it was the appellant’s idea to visit and that she told him she did
not want him to come over: “I was weak and tired and just sick and I had a
lot of homework to do. . . . I didn’t see a point to it.”2 When asked on cross-
examination to quantify how sick she felt on a scale of one to ten, with ten
“being gravely ill,” JW described herself as a “7.”3 She testified that she gave

    1 The military judge found the appellant not guilty of larceny of Basic Allowance

for Housing, a violation of Article 121, UCMJ.
   2   Record at 60.
   3   Id. at 91.



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                       United States v. Brown, No. 201700003


the appellant her address because “[h]e wouldn’t stop asking me and he had
offered to set up the chair I had bought for my desk. So I figured the only way
to get him to stop asking is to just let him over.”4 The appellant arrived
around 9:30 p.m. Monday night. They stayed in the living room for about two
hours while the appellant attempted to assemble JW’s desk chair and JW did
homework. JW’s roommate came home around 11:30 p.m., greeted the
appellant, and went to bed in her bedroom.
    Shortly thereafter, JW “invited” the appellant into her bedroom to watch
a television show on Netflix on her laptop computer.5 She testified that she
expected the appellant to go home after the show was over, and then she
would go to sleep. JW shut her bedroom door behind them and went into her
bathroom. She removed her clothes and her bra and changed into a “big t-
shirt and mesh shorts” she normally “would wear to bed.”6 JW emerged from
the bathroom, turned out the lights in her bedroom, and she and the
appellant lay on her bed watching the laptop which was open on her lap.
    JW described what happened next as three separate incidents. First, the
appellant kissed her. The kiss came about 20 minutes into the television
episode. Based on JW’s narrative, it probably happened between midnight
and 12:30 a.m. She testified that the appellant was on top of her “a few
minutes,” but the kiss did not “necessarily” last that long.7 According to JW,
she told the appellant, “No. Stop. I don’t want this to happen. This is not
happening tonight.”8 The appellant stopped, and they returned to the show.
   At some point, the laptop fell to the floor. She did not attempt to retrieve
the laptop but closed it.
    “Just a few minutes” later, the appellant kissed JW again. This was the
second kiss. The appellant rolled on top of her. It is unclear from JW’s
testimony whether she pushed the appellant off of her or he rolled off of her
following the second kiss.
    After this second incident, JW described a period of about an hour during
which she and the appellant lay “fairly silent with little conversation.” JW
testified she “was staring at the ceiling.”9 Although JW estimated about an


   4   Id. at 60.
   5   Id. at 98-99.
   6   Id. at 63.
   7   Id. at 100.
   8   Id. at 64.
   9   Id. at 65.



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                         United States v. Brown, No. 201700003


hour passed, her subsequent testimony revealed it was likely closer to two
hours. On cross-examination, JW testified that the appellant made multiple
attempts to kiss her, but there was no “other romantic activity going on
during that time period.”10
    Then, at exactly 2:36 a.m., the appellant rolled on top of JW a third time.
JW was certain about the time because she reached for her iPhone on the
desk beside her bed and pressed the home button to display the clock. She
described the appellant holding her wrists above her head while kissing and
biting her neck and trying to pull down her shorts and underwear. JW said
she was able to grab her underwear and pull them back up. She testified that
she verbally protested, saying no “30 to 40 times,”11 and she specifically
declined his proposals that they perform oral sex on each other. After he
succeeded in a second attempt to remove her underwear, he tried to digitally
penetrate her. But she swatted him away with her hands. She described
trying to push him off of her with her hands and legs and testified that he
“forcefully” pushed open her legs and penetrated her with his penis.12 It is
unclear when, but at some point JW said she gave up and went limp. She
testified that she “froze” and “went into survival mode.”13 The appellant
eventually ejaculated on JW’s t-shirt. She went to the bathroom, threw her
clothes in the dirty laundry, put on clean clothes, and returned to bed with
the appellant. She testified she did not ask him to leave because she was
afraid and believed there would be “some sort of repercussion from him.”14
    JW awoke the next morning, Tuesday, and prepared to go to school. She
testified that she told the appellant she was angry with him and had not
wanted to have sex with him. According to her testimony, he replied, “it was
okay. That [she was] not a slut for sleeping with someone on the first night.”15
Nevertheless, JW and the appellant proceeded with plans that he would
return to her apartment after her classes that afternoon. JW explained that
she did not know what to say to dissuade him from returning. Instead she
asked him to bring her food from a specific restaurant. So that afternoon, JW
and the appellant met at her apartment, and she drove him back to campus
with her so he could use the gym while she worked until 10:00 p.m.


   10   Id. at 100-01.
   11   Id. at 68.
   12   Id. at 69.
   13   Id. at 129.
   14   Id. at 70.
   15   Id.



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Afterward they met at her car then stopped at a fast food restaurant and
grocery store on the way back to her apartment where he spent the night a
second time. JW testified that she rebuffed his kisses on Tuesday night, and
they did not have sex again. The appellant returned to the apartment a third
time Wednesday afternoon. They talked about their plans to go out that
Sunday. Her roommate observed the conversation, later testifiying that “it
seemed to me like she was trying to get around” their plans.16 The appellant
did not stay that night, departing around 7:00 p.m. after JW “very blunt[ly]”
told him he needed to leave.17
     They continued to text on Thursday and Friday about “random things.”18
JW believed it was Thursday when the appellant cancelled their weekend
plans, citing the arrival of a female friend in town for the weekend. She
testified that she “literally jumped up and down” when the appellant
cancelled their plans.19 Her roommate testified that when JW told her about
cancellation of the plans JW “had a big smile on her face and kind of did a
little jump of excitement.”20
    On Friday, JW met a girlfriend who asked her how things were going
with the appellant. JW “just burst out into tears and told her [friend]
everything that happened.”21 JW later confided in her roommate as well. The
record contains none of the content of those conversations. JW texted her ex-
boyfriend about the incident as well. Trial defense counsel called the ex-
boyfriend to testify that JW told him about waking up to the appellant
kissing and touching her.
   After opening up to her friend on Friday afternoon, JW blocked the
appellant from contacting her through any of her social media accounts. She
ignored his text messages and refused to take his calls. The appellant
contacted JW’s roommate who replied via text message that JW was upset
with the appellant. Almost two weeks later, JW contacted the San Diego
Police Department to report that the appellant had raped her. Neither her
report nor her interview was entered into evidence. A San Diego detective
arranged for JW to initiate a pretext phone call with the appellant that
resulted in a 26-minute recorded conversation.


   16   Id. at 143.
   17   Id. at 74.
   18   Id.
   19   Id. at 75.
   20   Id. at 144.
   21   Id. at 75.



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                         United States v. Brown, No. 201700003


B. The recorded pretext phone conversation between JW and the
   appellant
    In the company of the San Diego detective, JW placed the call to the
appellant. During the first few minutes of the intercepted phone call between
JW and the appellant, the appellant recounted his failed attempts to reach
her, his message to her roommate, and the roommate’s response. He
understood from JW’s roommate that JW was upset, and he understood it to
stem, at least partly, from the hickey he gave her. It was clear that he
believed his relationship with JW had been evolving normally until she
suddenly cut contact, and he claimed to have “no idea”22 why JW was
suddenly so upset with him.
    JW confronted the appellant with details of the evening. She said, “I just
want to talk about this so we can move on from this.”23 JW began with her
objection to his first kiss, an objection he “barely” remembered.24 She said, “I
know I said no like 20 or 30 times.”25 She asked him why he had come to her
apartment that Monday night when he knew she was “super sick,” and he
replied without hesitation, “because you wanted me to.”26 The appellant
agreed that JW did not say they were going to have sex that night. He
acknowledged how they stopped after she protested the first kiss and
returned to watching Netflix. He did not disagree that he turned over on top
of JW and kissed her a second time. JW reminded him how she expressed
pain when he kissed her neck and concern that he would leave a mark. The
appellant acknowledged this and responded that he stopped sucking on her
neck.
   The appellant’s recollection of events implied that physical activity
between the two stopped and started repeatedly. He pointed to what he
perceived as consent from her:
         [I] wanna say two or three times we stopped where we didn’t do
         anything. There were times where you would touch me to feel
         on me, and I was just like27
         ...


   22   Prosecution Exhibit (PE) 6 at 3:30.
   23   Id. at 4:30.
   24   Id. at 4:45.
   25   Id. at 5:00.
   26   Id. at 5:30.
   27   Id. at 7:15.



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                        United States v. Brown, No. 201700003


         There was a time where I was like stop and you just kept
         letting me go, and eventually we ended up having sex.28
                                       ....

         No, I’m not saying you let me just go and have sex. . . . When
         we were laying there you would let me keep doing what I’m
         doing. I remember there were a few times when you touched
         me like you wanted me to keep going.29
    JW repeatedly redirected the conversation to when she said no. When she
claimed that she said no while they were having sex, he insisted, “[w]hen we
were actually having sex, you never said no.”30 She confronted him about
pulling down her shorts and underwear. He claimed she was not wearing
shorts, only the big t-shirt. JW testified that she threw away her clothing, so
the government presented none of it as evidence.
    When the appellant questioned the reason for their discussion, she said,
“I want to move on. Like I want us to be okay.”31 With incredulity in his voice,
he said:
             No, you’re literally acting like I raped you. . . . If it was that
         you would’ve thrown a huge fit, and I wouldn’t have been there
         for like two days afterwards. . . . And there’s very few times in
         there where you actually said no and you were like, almost like,
         get the hell out of my apartment. You would say no and then
         keep kissing me. Or you would say no, it would be fine. Or
         you’d say no, and you would touch me. Or I would touch you.32
He repeated that he stayed at her apartment until Wednesday, and “it was
never an issue. Only time it was an issue is when I said I was going to take
you out or whatever, and I couldn’t take you out because my friend was
coming to town, and that was it.”33 JW remained silent, interrupting him only
to refocus the conversation on his admission that she said no. Again she




   28   Id. at 7:30.
   29   Id. at 8:00.
   30   Id. at 8:45.
   31   Id. at 9:20.
   32   Id. at 9:45.
   33   Id. at 10:00.



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                          United States v. Brown, No. 201700003


explained she just wanted the truth, and “I don’t want to have any animosity
between us.”34
    At this point the appellant began to admit, with a placating tone, that JW
said no. But “no” became disassociated from any particular act, and it was
unclear whether this was no to a hickey, no to oral sex, or no to some other
sexual act. The appellant continued to adamantly and explicitly deny that the
sex was nonconsensual. JW asked if he held her arms down, and he replied
with some exasperation, “Did I? I don’t know?”35
    Again she confronted him about her saying, no. He replied, “I remember
you saying no, because you sat there and you did the little, frickin’ whatever
on my lips.”36 She countered, “the what?”37 He explained, “you put your finger
inside my lips.”38
    Both JW and the appellant grew audibly frustrated with each other as
their conversation reached an impasse. JW repeatedly pleaded for the
appellant to admit the truth. “There will be no moving on for us if you can’t
just admit to me the truth.”39 The appellant insisted that he had told her the
truth. He offered an admission without remorse, in a tone that did not sound
genuine. “It wasn’t okay with you, and yes, you did say no. . . . Having sex
with you wasn’t okay. . . . Sorry, [JW], like what do you want me to say?”40
She replied with emotion in her voice, “thank you. That’s really what I
wanted to hear.”41 But she pressed on. When she asked him if he forced
himself on her or held her down, he vehemently responded, “No!”42 He
distinguished their encounter from rape by saying:
             Why you said no, and I just kept going? Because you would
         provoke me, first of all. Second of all, there was never a time
         where you. . . . You didn’t forcibly say it, like you weren’t
         killing me, you didn’t choke me, you didn’t freakin’ slap me, you



   34   Id. at 10:45.
   35   Id. at 12:05.
   36   Id. at 12:20.
   37   Id. at 12:27.
   38   Id. at 12:30.
   39   Id. at 13:50.
   40   Id. at 14:20.
   41   Id. at 14:40.
   42   Id. at 13:25, 14:50.



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                        United States v. Brown, No. 201700003


         didn’t do anything. You almost said it as if you wanted me to
         keep going, but you weren’t sure if you wanted to do it.43
She asked if he were sorry, and he gave, by its tone, a half-hearted apology
that he had done something to offend her and this had come between their
friendship. As they continued to argue about whether their encounter
constituted rape, it was clear that they disagreed about whether the
circumstances and the context in which no was uttered mattered. The
appellant attempted to explain that rape would involve force or alcohol. JW
countered that the pain relievers and antibiotic she was taking were
comparable to alcohol. The appellant disagreed.
    JW returned to confronting the appellant with his admission that she said
no. He responded, “I don’t want to keep reliving this. . . . What do you want
me to say?”44 Then he tried complimenting her, said he would love to continue
talking to her, and offered a more sincere apology, insisting he had not
intended whatever happened. In response, she said “If you want to move
forward from this, then let’s just admit the truth.”45 She asked how she could
trust him without him acknowledging that she said no and he forced himself
on her. He responded, “because that is not what happened.”46 He asked why
she kept repeating herself, and she replied, “because you keep going back on
what you’re saying. I don’t feel like you understand why I’m upset.”47 He tried
again, attempting to explain that he had not come to her apartment that
night to take advantage of her for sex. She interrupted him and solicited a
somewhat vague admission that he did not mean to do it but did. Then she
asked, “do you think you just went too far?”48 He replied, almost in a whisper,
“no. Why are you asking these questions?” The conversation returned to her
desire for the truth and his insistence that he had told her the truth. She
said, “You’re not telling me the truth because you keep going back on your
word. I just want to know that I can trust you.”49 The appellant responded,
“you’re never going to trust me.”50 She said she just wanted to know that this
wasn’t going to happen to someone else or to her again. In a measured tone

   43   Id. at 16:00.
   44   Id. at 20:45.
   45   Id. at 22:40.
   46   Id. at 23:00.
   47   Id. at 23:15.
   48   Id. at 24:40.
   49   Id. at 25:00.
   50   Id. at 25:05.



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                        United States v. Brown, No. 201700003


that lacked sincerity, the appellant said, “yes, you said no. Yes, I forced
myself. If that’s how you . . .”51 JW interrupted him before he could finish,
thanked him, and abruptly ended the phone call.
                                 II. DISCUSSION
    The appellant avers that his conviction for sexual assault is legally and
factually insufficient because he harbored a reasonable mistake of fact as to
JW’s consent to engage in sexual intercourse. We agree.
A. Applicable law
   1. Legal and factual sufficiency
    We review the legal and factual sufficiency of evidence de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). A
conviction is legally sufficient if, “considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.” United States v. Turner, 25
M.J. 324, 324-25 (C.M.A. 1987) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In resolving questions of legal sufficiency, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
    “For factual sufficiency, the test is whether, after weighing the evidence
in the record of trial and making allowances for not having personally
observed the witnesses, the members of the [appellate court] are themselves
convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J.
at 325. “Such a review involves a fresh, impartial look at the evidence, giving
no deference to the decision of the trial court on factual sufficiency beyond the
admonition in Article 66(c), UCMJ, to take into account the fact that the trial
court saw and heard the witnesses.” Washington, 57 M.J. at 399. “By
‘reasonable doubt’ is not intended a fanciful or ingenious doubt or conjecture,
but an honest, conscientious doubt suggested by the material evidence or lack
of it in this case. . . . The proof must be such as to exclude not every
hypothesis or possibility of innocence, but every fair and rational hypothesis
except that of guilt.” United States v. Loving, 41 M.J. 213, 281 (C.A.A.F.
1994).




   51   Id. at 25:30.



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                        United States v. Brown, No. 201700003


   2. Sexual assault, bodily harm, and consent
    The appellant was charged with and convicted of sexual assault in
violation of Article 120(b)(1)(B), UCMJ, which was comprised of these
elements:
   (1) That the accused committed a sexual act upon JW by causing
       penetration, however slight, of the vulva . . . by the penis; and
   (2) That the accused did so by causing bodily harm to JW.
   (3) That the accused did so without the consent of JW.52
Bodily harm “means any offensive touching of another, however slight,
including any nonconsensual sexual act[.]”53 In this case, the bodily harm
alleged was the “offensive touching of J.W., however slight, including any
nonconsensual act.”54 “When the same physical act is alleged as both the
actus reus and the bodily harm for the charged sexual assault, the
government must prove lack of consent as an element.”55 The government
must prove beyond a reasonable doubt that JW did not consent to the
physical act(s).56 Consent is defined as:
             [A] freely given agreement to the conduct at issue by a
         competent person. An expression of lack of consent through
         words or conduct means there is no consent. Lack of verbal or
         physical resistance or submission resulting from the use of
         force, threat of force, or placing another person in fear does not
         constitute consent. A current or previous dating or social or
         sexual relationship by itself or the manner of dress of the
         person involved with the accused in the conduct at issue shall
         not constitute consent.57
             Lack of consent may be inferred based on the circumstances
         of the offense. All the surrounding circumstances are to be
         considered in determining whether a person gave consent, or


   52 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 573-74 (10
Sep 2014).
   53 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (MCM), Part IV, ¶
45.a(g)(3).
   54   Charge Sheet.
   55   Military Judges’ Benchbook at 575.
   56   Id.
   57   MCM, Part IV, ¶ 45.a(g)(8)(A). See also Military Judges’ Benchbook at 576.



                                             11
                        United States v. Brown, No. 201700003


         whether a person did not resist or ceased to resist only because
         of another person’s actions.58
   3. Mistake of fact
    Evidence of a misunderstanding of the circumstances surrounding an
offense may give rise to the defense of mistake of fact. See RULE FOR COURTS-
MARTIAL (R.C.M.) 916(j)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2016 ed.) (MCM) (“[I]t is a defense to an offense that the accused held, as a
result of ignorance or mistake, an incorrect belief of the true circumstances
such that, if the circumstances were as the accused believed them, the
accused would not be guilty of the offense.”). In the context of sexual assault
committed by bodily harm—where lack of consent is an element—mistake of
fact can negate the element of consent.
    If there is evidence or testimony “tending to show that, at the time of the
alleged offense, the accused mistakenly believed that [the alleged victim]
consented to the sexual conduct alleged[,]” then the defense of mistake of fact
has been raised.59 “An accused is not required to testify in order to establish a
mistake-of-fact defense. The evidence to support a mistake-of-fact instruction
can come from evidence presented by the defense, the prosecution or the
court-martial.” United States v. DiPaola, 67 M.J. 98, 100 (C.A.A.F. 2008)
(citing United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998)). Nor does
defense counsel’s failure to raise mistake of fact result in forfeiture of the
defense. See United States v. Sellers, 33 M.J. 364, 368 (C.M.A. 1991).
    The evidence triggering the mistake of fact defense must show that the
accused’s mistake was both honest and reasonable. United States v. Hibbard,
58 M.J. 71, 75 (C.A.A.F. 2003). See also R.C.M. 916(j)(1) (“If the ignorance or
mistake goes to any other element requiring only general intent [vice specific
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.”).
             “Mistake of fact as to consent” means the accused held, as a
         result of ignorance or mistake, an incorrect belief that the other
         person consented to the sexual conduct as alleged. The
         ignorance or mistake must have existed in the mind of the
         accused and must have been reasonable under all the
         circumstances. To be reasonable, the ignorance or mistake
         must have been based on information, or lack of it, that would
         indicate to a reasonable person that the other person


   58   MCM, Part IV, ¶ 45.a(g)(8)(C). See also Military Judges’ Benchbook at 576.
   59   Military Judges’ Benchbook at 581.



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                         United States v. Brown, No. 201700003


          consented. (Additionally, the ignorance or mistake cannot be
          based on the negligent failure to discover the true facts.
          “Negligence” is the absence of due care. “Due care” is what a
          reasonably careful person would do under the same or similar
          circumstances.)
              [The factfinder] should consider the inherent probability or
          improbability of the evidence presented on this matter. [The
          factfinder] should consider the accused’s age, education,
          experience, along with the other evidence in this case . . . .60
   Although the appellant bears the burden of raising some evidence of a
mistake of fact, the burden remains on the government to prove, beyond a
reasonable doubt, that there was neither consent nor an honest and
reasonable mistake of fact as to consent.
              The burden is on the prosecution to establish the guilt of
          the accused. If [the factfinder is] satisfied beyond a reasonable
          doubt that the accused was not under the mistaken belief that
          the other person consented to the alleged sexual conduct, then
          the defense of mistake does not exist. Even if [the factfinder]
          conclude[s] that the accused was under the mistaken belief
          that the other person consented to the sexual conduct as
          alleged, if [the factfinder is] convinced beyond a reasonable
          doubt that, at the time of the charged offense, the accused’s
          mistake was unreasonable, the defense of mistake does not
          exist.61
But if the factfinder is not convinced beyond a reasonable doubt that the
accused was not under an honest and reasonable mistake of fact as to
consent, then the defense exists. The government must overcome the defense
and satisfy its burden of proving the elements of the offense, including lack of
consent, beyond a reasonable doubt.




    60 Id. See also United States v. Paige, 67 M.J. 442, 455 (C.A.A.F. 2009) (in the
context of sexual assault, “the mistake of fact defense requires a subjective, as well as
objective, belief that [the other person] consented to the sexual intercourse”); Jones,
49 M.J. at 91 (“‘a mistake-of-fact defense to a charge of rape requires that a mistake
as to consent be both honest and reasonable’”) (quoting United States v. Willis, 41
M.J. 435, 438 (C.A.A.F. 1995)) (emphasis in original).
    61   Id. at 582 (emphasis added).



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                     United States v. Brown, No. 201700003


B. The phone call, mistake of fact, and reasonable doubt
   1. Admissions vs. confession
    The government introduced the surreptitiously recorded phone call
between the appellant and JW as a prosecution exhibit and argued it was a
confession. Although the appellant made repeated admissions, we do not
believe they amounted to a confession of sexual assault. A confession is “an
acknowledgment of guilt.” MILITARY RULE OF EVIDENCE (MIL. R. EVID.)
304(a)(1)(B), MCM. An admission is “a self-incriminating statement falling
short of an acknowledgment of guilt[.]” MIL. R. EVID. 304(a)(1)(C).
    Although we were not able to observe witnesses testifying, we were able
to listen to the recording of the phone call. Our first impression was the tenor
of the conversation. JW and the appellant spoke to each other in a familiar
tone indicative of a close personal relationship. The initial awkwardness in
JW’s voice disappeared quickly. She referred to his knowledge of her. He
made comments indicating that her opinion of him mattered and that he was
sensitive to her feelings. JW and the appellant had communicated
electronically for six weeks before they met in person, and this conversation
reflected the existence of a relationship. To be clear, we do not believe the
existence of this relationship formed a basis for consent to sexual activity.
Instead it is relevant to our interpretation of the phone call.
    JW, who sat with a detective, employed three tactics to elicit admissions
from the appellant. She confronted him with details of the night. Once he
admitted that she said “no,” she tried to leverage those admissions to extract
more detailed admissions. This was almost entirely unsuccessful. She
pleaded with him to tell her the truth. He responded repeatedly that he had
told her the truth. Thirdly, she explained that she needed him to admit to
what happened so she could get over it and move on. She also suggested that
resolution of the issue would restore their friendship, trust between them,
and some kind of relationship. The appellant was most responsive to these
emotional pleas to tell her what she wanted to hear. She repeated these three
tactics in something of a cycle as she attempted to elicit something more than
an admission that she had said no. She argued that she said no, and he
argued that the surrounding circumstances—her actions—communicated
otherwise. As the conversation continually reached an impasse, their audible
frustration with each other grew.
   On two occasions, the appellant made statements acknowledging guilt.
For multiple reasons, we believe they were offered to placate JW and not as
genuine confessions. The first statement came midway through the
conversation. The appellant ended it with what sounded like a less than




                                      14
                         United States v. Brown, No. 201700003


sincere apology and “what do you want me to say?”62 JW responded with
emotion and gratitude, telling him that was what she wanted to hear. But
either JW or the detective was not satisfied, and JW again attempted to
extract more from the appellant. The cycle of confrontation and denial
restarted. Despite his admissions and even words amounting to a confession,
the appellant consistently denied raping her, holding her down, or going too
far. The appellant expressed his weariness and desire to end the discussion.
She justified her persistence by saying, “you keep going back on your word.”63
What followed sounded like the appellant’s attempt to end a stalemate—
appeasement—not a sincere, remorseful acknowledgment of guilt. Once
again, the appellant conditioned his words, saying, “[i]f that’s how you . . .
[.]”64 JW interrupted him before he could finish and then quickly ended the
phone call.
   2. Honest mistake of fact
    The phone call raised the defense of mistake of fact. Trial defense counsel
chose not to pursue a mistake of fact defense but instead challenged JW’s
credibility. Since a military judge—not members—tried the appellant,
instructions as to a mistake of fact defense were never at issue. There is no
proffer of some evidence of mistake of fact to evaluate. Instead, we consider a
mistake of fact defense in our de novo review of the legal and factual
sufficiency of the appellant’s conviction for sexual assault.
    The conversation provided ample evidence that the appellant honestly
believed his sexual encounter with JW was consensual. As sexual assault is a
general intent offense, we must determine whether we are convinced beyond
a reasonable doubt that the appellant did not act under a reasonable, as well
as honest, mistake of fact when he had sexual intercourse with JW.
   3. The surrounding circumstances
    We cannot ignore the context surrounding the incident and the mistake of
fact at issue. According to JW, the appellant apparently misunderstood her
feelings about his presence in her apartment, even before his first visit. This
misunderstanding continued for four days. A mistaken belief as to whether
someone is welcome in another person’s home and company is both factually
and legally distinguishable from a mistake of fact as to consent to sexual
activity. But it would be artificial to divorce a two-hour mistake of fact about
sexual activity from the surrounding week-long misunderstanding. Whether


   62   PE 6 at 14:20.
   63   Id. at 25:00.
   64   Id. at 25:30.



                                        15
                        United States v. Brown, No. 201700003


the appellant reasonably misconstrued JW’s thoughts and preferences about
his presence in her home and their continued interaction is probative of his
mistake as to her consent to sexual activity.
    JW testified she did not want the appellant to come to her apartment the
night of Monday, 31 August. She gave him her address only to silence his
persistent requests. Early in their recorded call, she asked him why he
insisted on coming to her apartment on a Monday night when she was so
sick. His reply was almost indignant. “Because you wanted me to.”65
Persistence is the only reason JW offered as to why she gave the appellant
her address when she did not want him to visit.
    JW, who testified to feeling very unwell, invited the appellant to watch
Netflix in her bedroom into the early morning hours. She believed that the
appellant would leave her apartment at the end of the show, and she would
go to sleep alone. After admitting the appellant to her bedroom and shutting
the door behind them, she went to the bathroom, removed her bra, and
changed into her pajamas. She returned to the bedroom and turned out the
light. In order to see the laptop screen on her lap, JW and the appellant must
have lain side by side on her bed. To be absolutely clear, none of this implies,
much less amounts to, consent to any sexual activity, let alone sexual
intercourse. But these circumstances are relevant to our consideration of the
reasonableness of the appellant’s mistake of fact.
   Following the alleged sexual assault, JW changed her clothes, returned to
her bed, and slept with the appellant until her alarm awakened her around
7:30 that morning. She testified that, immediately after the alleged assault,
she could not confront the appellant “without some sort of repercussion from
him.”66 But before leaving for school that morning, she “expressed to him how
[she] was angry[.]”67 When he responded by assuring her she was not a slut,
she clarified that she had not wanted to have sex with him.
   JW went to school for the day, and the appellant presumably went to
work. But they proceeded with their plans to meet up that afternoon. JW
asked the appellant to pick up take-out food for her on his way to her
apartment. She drove him from her apartment to the gym and then drove
him back to her apartment where he spent a second night. He returned
Wednesday afternoon but did not stay the night. JW and the appellant talked
about their plans to go out during the coming Labor Day weekend. JW’s


   65   PE 6 at 5:30.
   66   Record at 70.
   67   Id.



                                       16
                     United States v. Brown, No. 201700003


roommate testified to observing this conversation and JW’s ambivalence and
lack of enthusiasm about their plans. But it was the appellant who cancelled
the plans the next day, citing the arrival of a female friend for a visit that
weekend. JW and her roommate testified that JW responded to this
cancellation with glee, but had the appellant not cancelled, the evidence
suggests JW would have gone out with him again.
    We focus on what passed between the appellant and JW before and after
intercourse solely for the misunderstanding that developed and persisted
between them. According to JW’s testimony, the appellant’s very presence in
her apartment was always unwanted, with the possible exception of an hour
watching Netflix. Yet the appellant came to her apartment three times, spent
the night twice, maintained communications with her via text, and planned a
weekend outing with her, apparently oblivious to her true feelings. During
the phone call, he argued that her behavior was incongruent with her
allegation. Instead of detecting fear, antipathy, or even apathy in JW, he
asserted his belief the relationship was progressing. The appellant contended
everything was fine between them until he had to cancel their weekend
plans. Outside of JW’s testimony, there is little evidence that the appellant’s
misunderstanding was unreasonable.
   In this context of misunderstanding, we look at the sexual act and the
mistake of fact as to consent to sex.
   4. The government’s case
    The prosecution’s evidence consisted almost entirely of JW’s testimony.
Alcohol played no role in this case. JW did not allege in the phone call or at
trial that she was asleep or unconscious before or during the sexual act. The
forensic evidence in the case consisted of a photograph, taken four to five
days after the incident, of what appeared to be a bruise on JW’s neck. JW
attributed it to the appellant sucking on and biting her neck. Aside from her
testimony, there was no evidence of injury or use of physical force. JW
washed her sheets and clothing after the incident and then threw away her
clothing. The government did not present the underwear the appellant
allegedly removed. JW did not report the sexual assault for almost two
weeks, and there was no evidence of a sexual assault forensic exam. Other
than the surreptitiously recorded phone call, there were no text messages or
other communications between JW and the appellant in evidence. JW’s
roommate was in the apartment, in her own bedroom, during the entire
incident. But she did not report hearing or seeing anything unusual. JW
confided in a girlfriend and her roommate about the incident but waited a
week to report a sexual assault. Her roommate and friend testified to her
distress but not about the content of their conversations. No law enforcement
interviews were admitted into evidence.

                                      17
                        United States v. Brown, No. 201700003


   Although we owe the military judge’s verdict no deference, we
acknowledge that he saw and heard JW and other witnesses testify. See
Washington, 57 M.J. at 399. We did not. Nevertheless, we surmise the
military judge found JW credible, and our own assessment of the record
reveals no evidence that JW lied to investigators or the court.
   Nor do we believe JW lied about or attemped to withhold information
from her medical records, as trial defense counsel suggested. JW’s sore throat
and feelings of illness at the time of the incident are relevant not to her
credibility but to the appellant’s mistake of fact. JW emphasized the
weakness she felt during the appellant’s visit. Her testimony indicated that
she believed her weakness was relevant to her interaction with the appellant
and that he should have recognized it. It is unclear how the appellant would
have—or should have—known that a bloody nose, sore throat, over-the-
counter pain relievers, or an antibiotic would have left JW weakened.
    To the extent we have concerns about JW’s credibility, they stem from the
record. During the phone call, JW told the appellant she said “no like 20 or 30
times.”68 By the time of trial, she testified that she said no “30 to 40 times.”69
More important, trial defense counsel effectively impeached JW with
statements about the incident she sent to her ex-boyfriend via text message.
Her ex-boyfriend testified that she wrote “she woke up to [the appellant]
kissing her and touching her.”70 This is contrary to her testimony that she
was awake preceding the incident. According to the ex-boyfriend, JW also
claimed to have confronted the appellant on the morning of the incident,
saying “something along the lines of, ‘You raped me and I’m pressing
charges[.]’”71 JW denied such a statement.
    JW’s testimony, on direct and cross-examination, presented legally
sufficient evidence of sexual assault. But the recorded phone call both
corroborated and disputed JW’s narrative. The argument between JW and
the appellant not only raised the mistake of fact defense but also dramatized
the tension at the crux of our factual sufficiency review. JW tenaciously held
to her position that her utterances of “no” communicated her lack of consent
to sex. “An expression of lack of consent through words or conduct means
there is no consent.”72 The appellant countered that JW’s non-verbal behavior


   68   PE 6 at 5:00.
   69   Record at 68.
   70   Id. at 190.
   71   Id.
   72   MCM, Part IV, ¶ 45.a(g)(8)(A). See also Military Judges’ Benchbook at 576.



                                           18
                        United States v. Brown, No. 201700003


undermined her words and communicated her consent. “All the surrounding
circumstances are to be considered in determining whether a person gave
consent, or whether a person did not resist or ceased to resist only because of
another person’s actions.”73
    In this case, the surrounding circumstances unfolded over a two-hour
period. To determine, beyond a reasonable doubt, whether the appellant’s
mistake of fact as to JW’s consent was not reasonable, we must inquire
further into those circumstances immediately preceding the sexual act.
   5. The two-hour gap
   The events at issue unfolded over more than two hours. Both JW and the
appellant were sober, and both were awake. But prosecutors presented
evidence about only a fraction of those two hours. There were two kisses a
few minutes apart sometime between midnight and 12:30 a.m. Then at 2:36
a.m., the appellant rolled on top of JW a third time. Intercourse occurred
within minutes.
    Counsel elicited only vague testimony from JW about the interim period.
She testified that she lay on her back staring at the ceiling, engaging in
minimal conversation with the appellant. On cross-examination she indicated
that he attempted to kiss her multiple times, but she denied there was other
romantic activity. Based upon the record before us, we are skeptical that the
appellant and JW lay still in near silence for two hours, especially in light of
the stop-and-go, back-and-forth sexual activity to which the appellant
repeatedly alluded in the phone call. He recounted kissing and touching,
frequently stopping and then resuming, sometimes at his initiative and
sometimes at hers. In his admissions, the appellant acknowledged her
hesitation, which led him to stop. He explained why he continued despite the
word no. “Because you would provoke me[.]”74 Although expressed
inarticulately, his impression of her subsequent invitation was clear. During
the phone call, JW denied none of the appellant’s assertions. She questioned
only his claim that she put her finger between his lips. This was among the
most credible of the appellant’s comments because of its spontaneity and
oddity. The prosecution did not prompt JW to rebut the appellant’s claims or
elaborate further on her cursory denial of other romantic activity.
    These circumstances preceding the act in this case may be highly
probative of both consent and the reasonableness of the appellant’s mistake
of fact. But we are left to speculate about them. Without more information,


   73   MCM, Part IV, ¶ 45.a(g)(8)(C). See also Military Judges’ Benchbook at 576.
   74   Id. at 16:00.



                                           19
                        United States v. Brown, No. 201700003


we find that we cannot determine, beyond a reasonable doubt, that the
appellant’s mistake of fact as to JW’s consent to sexual activity was
unreasonable.
   6. The government’s burden
   Once a mistake of fact is raised, the government must disprove it beyond
a reasonable doubt in order to satisfy its burden of proving lack of consent
beyond a reasonable doubt. We are not convinced beyond a reasonable doubt
that the appellant was not under the mistaken belief that JW consented. As
to whether that mistake was unreasonable, we have questions that leave us
with reasonable doubt.
    Factual sufficiency demands that we be able to exclude “every fair and
rational hypothesis except that of guilt.” Loving, 41 M.J. at 281. Honest,
conscientious doubt suggested by a lack of material evidence prevents that in
this case. Id. The government has fallen short of its burden, and we are not
convinced beyond a reasonable doubt that, at the time of the charged offense,
the accused’s mistake was unreasonable.75 Thus we find the conviction for
sexual assault factually insufficient.
   The appellant’s second assignment of error as to ineffective assistance of
counsel is moot.
                                  III. CONCLUSION
   The findings of guilty and the sentence are set aside, and the charge and
specification are dismissed.
   Judge JONES concurs.


   WOODARD, Judge dissenting:
    I must respectfully disagree with my colleagues. After weighing all of the
evidence in the record of trial and making allowances for not having
personally observed the witnesses, I, like the military judge in this case, am
convinced of the appellant’s guilt beyond a reasonable doubt. Additionally, as
I find that the appellant’s trial defense counsel were not ineffective, I would
affirm the findings and sentence.
   In order for the appellant to claim a mistake of fact as to consent as a
defense, his mistake must have existed in his mind at the time he engaged in
sexual intercourse with the victim. More importantly, his mistake must have
been not only honest but also reasonable. I find that any mistake of fact as to


   75   Military Judges’ Benchbook at 582.



                                             20
                          United States v. Brown, No. 201700003


the victim’s consent raised by the evidence in this case was proven, beyond a
reasonable doubt, to be unreasonable.
    Prior to 31 August 2015, the appellant and the victim had only
communicated with each other via social media, Facetime, phone calls, and
text messages.1 There is no evidence in the record that any of these
communications were ever sexual in nature. The first time they ever
physically interacted with each other was the night of 31 August 2015.2 After
arriving at the victim’s apartment around 9:30 p.m., for approximately two
hours they remained in the living room where the victim studied and the
appellant attempted to assemble a desk chair.3 Nothing in the record
suggests that any conversation or actions between them that occurred during
this two-hour period was of a sexual nature.
    Sometime around midnight, the victim and the appellant began watching
a television episode on her computer while lying on her bed. Prior to watching
the television episode, the victim changed, in a bathroom out of the sight of
the appellant, into her normal sleeping attire—a big tee-shirt, shorts, and
underwear.4 Although the victim did not claim to have ever laid any ground
rules about not having sexual intercourse or engaging in other sexual acts
that night, this question was never posed to her by the government, defense,
or the court.
    During the first 30 minutes of the episode, the appellant made his first
two attempts at sexual conduct with the appellant. Twice the appellant
attempted to initiate sexual conduct by rolling over onto the victim and
kissing her.5 The victim verbally expressed her non-consent to the sexual
conduct by telling the appellant “No. Stop. I don’t want this to happen. This
is not happening tonight.”6 She also physically expressed her non-consent by



   1   Record at 58-59.
   2   Id. at 60-61.
   3   Id. at 61.
   4 Id. at 90. Based upon my review of the record, it is unclear whether the victim
was actually wearing a bra at this time. The only mention of a bra in the record is
made when the trial defense counsel asks the victim, “[a]nd you were not wearing a
bra?” to which the victim responded, “no.” Id. at 99. Without the benefit of hearing
the inflection of the victim’s voice as she made this statement, and with no further
explaination in the record, the victim’s negative answer could be interpreted to mean
either “no, I was not wearing a bra” or “no, I was wearing a bra.”
   5   Id. at 63-64
   6   Id.



                                         21
                         United States v. Brown, No. 201700003


pushing the appellant off of her.7 Apparently the appellant heard,
understood, and complied with the victim’s objections to both of these first
two instances because each time he rolled back off of her and ceased his
attempt at foreplay.8
    The evidence of what happened between them, or lack thereof, over the
following two hours—12:30 a.m. to 2:36 a.m.—is, as the majority points out,
probative on the issues of consent and mistake of fact. However, where my
colleagues find reasonable doubt due to what they perceive as a critical two-
hour gap in the evidence, my review of the record reveals no such gap.
    The record reveals that there are two opposing versions of what occurred
during this time period. First we have the account the victim presented in
court, subject to the crucible of cross-examination. The victim testified that
following the appellant’s second attempt at engaging her in sexual conduct,
she lay in the bed next to him “staring at the ceiling” and described that she
and the appellant were “fairly silent with little conversation.”9 On cross-
examination the victim reconfirmed that there was minimal talking, that she
was staring at the ceiling, and that other than the appellant’s continued
attempts to kiss her, there was no other “romantic activity going on” between
them.10 In contrast, we have the appellant’s version of what happened during
that time as gleaned from the 26-minute recorded conversation. In the
recording, the appellant mentions that the victim kissed, touched, and felt on
him, and he did the same to her.11
    If the victim’s sworn testimony is credible and to be believed, nothing but
small talk and some additional, less aggressive attempts by the appellant to
kiss her occurred. If the appellant’s recorded, vague assertions are credible
and to be believed, the two engaged in some mutual touching and fondling.
Although the evidence of what happened during this time period may be in
conflict, it is, nonetheless, evidence of what did or did not occurr. “Reasonable
doubt . . . does not mean the evidence must be free from conflict.” United
States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) ), aff’d on other
grounds, 64 M.J. 348 (C.A.A.F. 2007) (citation omitted). By believing that
they are left to speculate about the interactions between the victim and the
appellant during this time period, the majority misconstrues the evidence


   7   Id.
   8   Id. at 63-64.
   9   Id. at 65.
   10   Id. at 100-01.
   11   PE 6 at 7:20, 7:41, 8:01, and 9:53.



                                              22
                        United States v. Brown, No. 201700003


actually contained within the record. It is either as the victim described in
her sworn testimony or it is as the appellant claimed in the recorded
conversation.
   Although what happened between the appellant and the victim before
2:36 a.m. is probative on the issues of consent and the reasonableness of any
mistake of fact as to that consent—what happened after 2:36 a.m. is even
more so. The victim’s description of what occurred is disturbing and graphic.
    The victim testified that the appellant, just as he had done twice before,
initiated his final assault by rolling “back over on top of [her] at 2:36 in the
morning and he started dry humping [her].”12 She described the appellant’s
facial expression as, “the look in his face was just completely different than
the first two times.”13 She went on to explain how “[she] kept telling him no
and stop and [she] wasn’t comfortable with this and [she] didn’t want this to
happen” but the appellant just “ignored [her].”14 She further testified how she
resisted the appellant’s efforts by pushing him away with her hands, but he
then forcefully held her hands above her head, kissed and bit her neck, and
attempted to remove her shorts and underwear. Although the appellant was
able to remove her shorts and throw them on the floor, she managed to grab
her underwear and pull them back up. However, despite her efforts, the
appellant was later successful in removing her underwear. When asked why
she resisted the appellant’s efforts to remove her underwear, she responded—
“[b]ecause I didn’t want him to rape me.”15
    The victim then described how, after the appellant had successfully
removed her underwear, “[h]e tried to stick himself inside [her],” and how “he
tried to finger [her]” but that she was able to thwart his attempts by
“push[ing] his hands away.”16 The victim also testified that during this time
the appellant told her that he wanted to perform oral sex on her and that he
wanted her to perform oral sex on him, to which the she responded “either
[sic] one wasn’t going to happen.”17 She explained how, throughout this final
assault, she told the appellant, in a variety of ways, “no—30 to 40 times,”18


   12   Record at 65.
   13 Id. The victim later described this look as “an angry face like he was going to
get what he wanted to and there wasn’t any stopping him no matter what.” Id. at 68-
69.
   14   Id. at 65.
   15   Id. at 67.
   16   Id.
   17   Id.



                                         23
                      United States v. Brown, No. 201700003


and that as the appellant “forcefully . . . pushed open her legs and penetrated
her,”19 she was trying to push him off of her with her hands and legs.
    After unsuccessful preventing the appellant to penetrate her by telling
him “no” and “stop” multiple times, by pushing him away with her arms and
legs, and by pushing his hands away from her genitalia, the victim explained
that at that point she “didn’t have the strength to do it anymore,” she “just
gave up,” and “went into survival mode which was just to lay limp and let
him take what he wanted.”20 The victim later clarified on cross-examination
that she just “froze”—no yelling, screaming, or further resistance, and that
she just “wanted to get through it.”21
    Noting that the defense never pursued or argued mistake of fact as to
consent during the trial, and the appellant did not testify, if the evidence of
the sexual assault in this court-martial ended here, we would have “no
insight as to whether appellant actually or subjectively did infer consent
based on these circumstances” of the evening leading up to the sexual
intercourse. United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995).
Accordingly, if there is evidence of mistake of fact as to consent to be found in
the record—it must be found in the recorded 26-minute conversation.
    In evaluating the content of the recorded conversation, it is important to
recognize the context and circumstances under which the recording was made
and the purpose of the conversation. Although the appellant may not have
realized it at the time, in reality, this was not an instance of a private
conversation between two individuals trying to work out their differences.
Nor was it a sworn deposition. Instead, it was a conversation initiated as part
of a criminal investigation with the victim being guided by a civilian law
enforcement agent. As revealed by the oft-repeated questions of the victim,
the purpose of the conversation was to confront the appellant with the
victim’s allegation and her account of what happened; have him confirm as
much of that account as possible; and attempt to obtain an apology.
    I agree with my colleagues that the appellant made several statements
that provides some evidence upon which we can rely to find that he actually
or subjectively did infer the victim consented to the sexual intercourse. As
such, I agree that the defense of mistake of fact as to consent was raised by
the evidence presented in the recorded conversation and the government was


   18   Id. at 68.
   19   Id. at 69.
   20   Id. at 68.
   21   Id. at 129.



                                       24
                           United States v. Brown, No. 201700003


required to prove beyond a reasonable doubt that his mistake was
unreasonable. However, unlike the majority, I find the government has met
its burden.
    Although the appellant’s assertions in these statements reveals for us the
circumstances of why he may have honestly believed that the victim
consented to sexual intercourse, the law requires more. No matter how
honestly held the appellant’s belief may have been, his belief must still have
been reasonable. The reasonableness of his belief must be considered in light
of all of the circumstances—not just the potentially self-serving assertions
pointed out by my colleagues, or the circumstances of the assault as described
by the victim testimony—but also the statements made by the appellant
during the recorded conversation which were against his interest. The
statements he made against his interest fall into three basic categories: (1)
acknowledgments that the victim had verbally expressed her non-consent; (2)
confirmation of some of the details of the night as described by the victim in
her sworn testimony; and (3) the admissions and apologies of the appellant.
    First, over the course of the 26-minute conversation, after initially stating
that he “barely”22 remembered her telling him no, the appellant later
unequivocally acknowledged at least 17 times during the conversation that
the victim had objected—at least verbally—to his sexual advances that night
prior to him engaging in sexual intercourse with her. Some of these objections
were so forceful, the appellant described them as “you were almost like get
the hell out of my apartment.”23
   Second, in addition to acknowledging that the victim had verbally
expressed her lack of consent to his sexual advances, the appellant also
confirmed other details of the night as described by the victim during her
sworn testimony. For instance, the victim told him to stop biting—or, as
described in the conversation, sucking—on her neck because it hurt and was
going to leave a mark.24 The sexual advances had come in waves25—“[I]
wanna say two or three times we stopped where we didn’t do anything.”26




   22   PE 6 at 4:45.
   23   Id. at 9:43.
   24   Record at 68; PE 6 at 6:31 and 7:10.
   25   Record at 63-69.
   26   PE 6 at 7:15



                                           25
                         United States v. Brown, No. 201700003


Sexual intercourse had, in fact, occurred.27 And finally, after the appellant
penetrated the victim, she stopped resisting.28
    Finally, the appellant admitted not once, but at least three times during
the conversation that having sexual intercourse with the victim that night
was not okay with her and followed each of these admissions with apologies.
The first instance occurred after the appellant admitted that the victim had
said no to his advances:
         JW: So if I said no, how did you think that I wanted to have
         sex?
         APP: It wasn’t OK with you and you said no.
         JW: What did you say? I’m sorry, I can’t hear you?
         APP: It wasn’t OK with you. And yes, you did say no.
         JW: What wasn’t OK with me?
         APP: Having sex with you wasn’t OK and you did say no.
         Sorry, [JW], like what do you want me to say.
         JW: Thank you. That’s what—that’s that’s really what I
         wanted to hear.29
After this first admission and apology, the appellant went on to confront the
victim with how she never “forcefully” said no, and how she “almost said it as
if [she] wanted [him] to keep going but [she wasn’t] sure if [she] wanted to do
it.”30 The appellant’s next acknowledgment and apology occurred shortly after
this explanation of why he continued despite her verbal protest:
         JW: Well, I mean, you just had admitted to me that I said no
         and you continued to do that. So I don’t understand why you
         think that I had to choke you or something because I did push
         you off. Don’t you remember that? I mean you just jumped back
         upon me. Why is that OK?
         APP: I didn’t say it was OK.
         JW: So are you sorry?



   27   Record at 69; PE 6 at 7:10, 7:34, 8:17, 8:48, 14:31, and 21:43.
    28 Record at 68 and 129; PE 6 at 8:48 (The appellant stated, “[w]hen we were

actually having sex, you never said no.”).
   29   PE 6 at 14:14.
   30   Id. at 15:50.



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         APP: [JW], at this point I’m over it. I’m sorry that came
         between our friendship like that. That it cuts between
         whatever we had. So for like a perfectly clean cut, cut us away
         from each other. It is what it is. I’m sorry about that. Sorry
         that I did whatever I did to make you feel so offended or make
         you feel like I’m a bad guy or make you feel like sex was the
         only thing I wanted from you. Or sex is the only thing I
         intended from you. Or sex is the—like I’m sorry that you feel, I
         pulled myself onto you like I almost raped you. I’m sorry that
         you feel any type of way. That wasn’t how I wanted you to feel.
         I’m sorry.31
The appellant’s final acknowledgment and apology came at the end of the
conversation after the two had discussed whether the appellant had forced
himself on her:
         JW: OK, looking back, I mean do you think you just went too
         far?
         APP: No, [JW], why are you asking these questions?
         JW: I have told you over and over. I just want the truth RJ.
         That’s it. I don’t know why you can’t just admit this to me?
         APP: I just told you the truth and you keep asking me different
         questions. Why do you keep asking me different questions?
         JW: Because you’re not telling me the truth because you keep
         going back on your word. I just want to know that I can trust
         you.
         APP: [JW], you’re never going to trust me again.
         JW: You don’t know that.
         APP: I do.
         JW: I Just want to know that this isn’t going to happen to
         somebody else or this won’t happen to me again. That’s all. I
         just, that’s all I want to know.
         APP: [JW], yes you said no. Yes, I forced myself on you cause
         that’s how you . . 32
         JW: Thank you. Thank you. That’s all I needed to hear.


   31   Id. at 16:35.
   32   The appellant’s voice trails off and he never finishes this statement.



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         APP: I, I’m sorry.
         JW: Going forward I just need to take some time and I’ll, I’ll be
         in touch with you. But I appreciate you telling me the truth RJ.
         I really do. This is going to help a lot for me to move on and
         clarify . . .
         APP: [JW].
         JW: . . . things. I’m on campus right now. I need to go. There is
         somebody walking by and I’m about to bust out in tears so I
         really need to go.
         APP: [JW].
         JW: Sorry.
         APP: [JW]. [The phone line goes dead.]33
    One could argue that these statements were confessions and not just
admissions and apologies. As such, they would belie any claim that the
appellant’s mistake of fact was honest. However, viewing them in the light
most favorable to the appellant as admissions, these statements still weigh
heavily against the reasonableness of his belief. At least 17 times during the
short 26-minute conversation the appellant admitted that he heard the
victim voice her objection to his sexual advances. He even acknowledged that
some of those objections were made in a forceful manner. He admitted
numerous times that having sexual intercourse was not okay with her and
apologized. Notably, the unreasonableness of his belief may be best
demonstrated by what the appellant did not say in the conversation. The
appellant never said or implied that the victim verbalized her consent to his
sexual advances. Instead, he argued with her that if he was sexually
assaulting her that night she would have done more to prevent him from
doing so.34
   The majority divines from the tone and tenor of his voice in the recording
that the appellant is placating the victim, offering disingenuous admissions
that she said no and that he forced himself on her, and giving hollow
apologies—because that is what she wants to hear. Listening to the same
recorded conversation I hear something quite different. I hear an appellant
who quickly evolved over the short 26-minute conversation from one who may
have been initially adamant in his belief that he had done nothing wrong and
may have believed his sexual experience with the victim was one of mutual


   33   PE 6 at 24:30.
   34   Id. at 15:50.



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                     United States v. Brown, No. 201700003


consent, to one one who—after repeatedly acknowledging the victim had
objected to his sexual advances and recognizing the unreasonableness of his
own belief regarding the victim’s consent—sounded contrite and remorseful
because he had ignored, missed, or misinterpreted her words and actions that
night and had forced himself on her.
    What implication we assign to the tone and tenor of the appellant’s voice
in the recording, and our view of the sincerity or emptiness of his admissions
and apologies can be debated. However, the record is clear on this—the
victim did not consent to sexual intercourse with the appellant. There was no
freely given agreement to the conduct at issue. The victim repeatedly
expressed her lack of consent through her words and resistive conduct. The
appellant chose to ignore these repeated verbal and unrebutted physical
expressions of non-consent. He was singularly focused on engaging in sexual
intercourse regardless of the numerous stop signs put up by the victim.
    Even assuming arguendo, the appellant was under the honestly mistaken
belief the victim was consenting to the sexual intercourse because of any
mixed signals he may have received from the victim, to be reasonable his
mistake must have been based upon information, or lack of it, that would
indicate to a reasonable person that the victim consented. Not that she may
have consented, but that she did consent to sexual intercourse. Considering
the victim’s continuous verbal and physical protests to the appellant’s sexual
advances, his belief that she consented to sexual intercourse was, beyond a
reasonable doubt, unreasonable. The appellant’s mistake was based upon his
negligent failure to exercise due care to discover whether or not the victim
was, in fact, consenting to sexual intercourse. Under the circumstances the
appellant found himself in those early morning hours, I have no doubt that a
reasonably careful person would have stopped sexually pursuing the victim
until after they had obtained a clear understanding of and affirmation of the
victim’s consent to sexual intercourse before penetrating her.
   For these reasons I would affirm the appellant’s sexual assault conviction.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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