             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                       v.

                            Senior Airman COURTNEY D. WADDELL
                                      United States Air Force

                                                 ACM 38500

                                             11 February 2015

           Sentence adjudged 17 October 2013 by GCM convened at Tinker Air Force
           Base, Oklahoma. Military Judge: Matthew S. Ward.

           Approved Sentence: Bad-conduct discharge, forfeiture of $200 pay per
           month for 5 months, reduction to E-1, and a reprimand.

           Appellate Counsel for the Appellant: Major Christopher D. James.

           Appellate Counsel for the United States: Major Robert Ramírez and Gerald
           R. Bruce, Esquire.

                                                    Before

                              ALLRED, HECKER, and CONTOVEROS
                                   Appellate Military Judges

                                       OPINION OF THE COURT

            This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                               under Air Force Rule of Practice and Procedure 18.4.



ALLRED, Chief Judge:

        A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C.
§ 920.1 The adjudged sentence was a bad-conduct discharge, restriction for 2 months,
forfeiture of $200 pay per month for 5 months, reduction to E-1, and a reprimand.

1
 The charged events took place on 23 February 2013, meaning the appellant was charged and convicted under the
current version of Article 120, UCMJ, 10 U.S.C. § 920, which applies to offenses committed on or after 28 June
2012. See Manual for Courts-Martial, United States, Part IV, ¶ 45 (2012 ed.).
Except for the 2 months restriction, the convening authority approved the sentence as
adjudged.

       Before us, the appellant argues that (1) the evidence was factually and legally
insufficient to support the finding of guilt, (2) the military judge erred by refusing to give
a requested mistake of fact instruction, and (3) the military judge erred by overruling a
defense evidentiary objection based on foundation. We disagree and affirm.

                                        Background

       The appellant lived off base with two roommates, one male and one female. The
male roommate had a girlfriend, Senior Airman (SrA) SF. All of these individuals
belonged to a larger group who would drink and socialize at the house of the appellant
and his roommates, at bars, and elsewhere. The appellant and SrA SF were good friends
and both worked for security forces.

       In early December 2012, the appellant met SrA SF’s younger sister, LF. This led
to LF joining the social group and then a dating relationship between LF and the
appellant. During late-December 2012 and January 2013, the appellant and LF engaged
in consensual sex on eight or nine occasions. Soon, however, LF decided she no longer
desired a relationship with the appellant. LF told the appellant and others she wanted him
to stop contacting her through text messages and otherwise, and the dating and sexual
relationship between LF and the appellant came to an end.

       Although they were no longer dating, LF and the appellant remained members of
the same social group, and LF continued to attend gatherings at the house of the appellant
and his roommates. In the early morning hours of 23 February 2013, after a night of
heavy drinking, LF passed out at the appellant’s house. She later awoke in the
appellant’s bed and found him having sex with her. This is the basis for the charge and
specification in this case.

                               Legal and Factual Sufficiency

       The appellant argues the evidence is legally and factually insufficient to sustain his
conviction because of inconsistencies in LF’s statements and because the evidence did
not show she was substantially incapacitated. We review issues of legal and factual
sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

      “The test for legal sufficiency of the evidence is ‘whether, 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.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner,


                                              2                                    ACM 38500
25 M.J. 324 (C.M.A. 1987)). “[I]n 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).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we are] convinced of the accused’s guilt beyond a reasonable doubt.” Turner,
25 M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look
at the evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399.

       The appellant was charged with sexual assault, in violation of Article 120(b)(3),
UCMJ. The specification stated the appellant did “commit a sexual act upon [LF], by
causing penetration of [LF]’s vulva with [his] penis, when [LF] was incapable of
consenting to the sexual act because she was impaired by an intoxicant, to wit: alcohol, a
condition that was known or reasonably should have been known by the accused.” The
elements of this offense, as charged, are that the appellant (1) committed a sexual act
upon LF and (2) did so when LF was incapable of consenting to the sexual act due to
impairment by an intoxicant and that her condition was known or reasonably should have
been known by the accused. See Manual for Courts-Martial, United States (MCM),
Part IV, ¶ 45.a.(b) (2012 ed.).

       There can be little doubt that, at the time of the offense, LF was highly intoxicated.
On the evening of 22 February 2013, she was celebrating her 21st birthday. LF and two
of her friends had dinner at a local restaurant, where LF had one alcoholic drink. They
then went to the appellant’s house, arriving around 2145. Someone suggested that,
because she was turning 21 years old, LF should attempt to consume 21 alcoholic drinks.
LF agreed, and this became her goal for the night. LF was at the appellant’s house for
about two hours, during which time she drank 10 to 12 shots of tequila and vodka, and
sipped another mixed drink. Upon doing so, according to her testimony, she began to
feel “drunk” but not “super drunk.”

       The group then departed the appellant’s house for a nightclub about 30 minutes
away. While there, LF danced and kissed Airman (Amn) JG and expressed interest in
having sex with him. LF had about five alcoholic drinks and became drunk to the point
of struggling to stand up. She drank a final shot of alcohol as the club was closing
around 0200.

       LF, Amn JG, and two other friends then drove to the appellant’s house. During
the drive, LF felt sick, and she struggled to avoid vomiting in the car. Arriving at the
appellant’s house, LF ran straight to the bathroom and began to throw up.


                                              3                                    ACM 38500
        LF recalled the appellant entering the bathroom while she was vomiting. The next
thing she remembered was awakening in a dark room. She was lying on her back, and a
male––whom she could not see––was on top of her, with his penis inside her vagina. LF
was not participating in the sexual activity, but the male continued to have intercourse
with her until he withdrew his penis and ejaculated onto her stomach. LF initially
thought this person was Amn JG. When the male arose from the bed and turned on the
light, however, she saw it was the appellant. LF observed that both she and the appellant
were naked, before she fell back to sleep in the appellant’s bed.

       The appellant does not dispute that he had sexual intercourse with LF. The
evidence also shows the appellant was fully aware of LF’s state of intoxication when he
had sex with her. He was at the house during her heavy drinking earlier in the evening,
and he was with the group at the nightclub while she continued to drink and struggled to
remain upright. At some point after the group returned to his house, the appellant told
Amn JG––whom LF had been kissing earlier in the evening––that LF did not want him
around. Amn JG and the others then departed, leaving the appellant alone with LF in the
house.

       LF’s sister, SrA SF, was on duty throughout the night in question and had several
phone conversations with the appellant that clearly showed he was aware LF was highly
intoxicated. Around 0230, the appellant called SrA SF to tell her LF had arrived safely at
his house from the nightclub. The appellant advised that LF was “really drunk,” and he
promised to take care of her. SrA SF managed to speak to LF on the phone, and she
sounded “pretty drunk,” she was slurring her speech, and “not making that much sense.”
After LF left the phone call to throw up, the appellant told SrA SF he would put LF to
sleep in his bed. When SrA SF protested, the appellant urged SrA SF to trust him, saying
he would not “try anything” or “touch her,” and that he would keep his clothes on. The
appellant later reported to SrA SF that LF was then asleep and there was no need to move
her; he would sleep on the couch.

      Still concerned, SrA SF called the appellant’s female roommate asking her to
remove LF from the appellant’s bed. Around 0330, the roommate attempted to do so, but
LF refused to move. The appellant told the female roommate that he too had tried to
move LF from his bed but she had refused, and he was now going to sleep in the bed.

        The following day, LF reported the incident to at least two friends. Two days
later, LF told her sister she had awoken to find someone having sex with her and she had
no idea where she was. LF also confronted the appellant. Through text messages in the
days following the incident, the appellant repeatedly apologized to LF for having sex
with her while she was intoxicated. After LF texted the appellant that she “had no [i]dea
what was going on” and that she did not know it was the appellant having sex with her
until he turned on the lights, he responded:


                                            4                                   ACM 38500
              All I’m going to say is I’m sorry yea I knew u [sic] were
              drunk and so was I but I wasn’t hammered and shouldn’t of
              [sic] let that happen and I’m sorry honestly it was a mistake
              that and [sic] I wish I would of [sic] stopped and thought
              things through. . . . But honestly from the bottom of my heart
              I’m sorry. It was a mistake that I wish I could take back. . . .
              I’m truly sorry this is how your [sic] going to remember me . .
              . . But I understand and I feel like sh[*]t for it. I’m sorry . . . .

        There are numerous indications that, in the weeks preceding the sexual assault, LF
rebuffed the appellant’s repeated efforts to resume their dating relationship. Following
their breakup, LF did not kiss the appellant, dance with him, nor express any physical or
romantic interest in him. Furthermore, the evidence at trial suggested LF had no desire
for revenge or any motive to fabricate the allegations. Although she was upset by what
the appellant had done, she wanted to quickly and quietly put the situation behind her.
When she finally discussed the sexual assault with investigators, LF did so only
reluctantly, after being approached by them in response to information they learned from
others.

       Viewing the evidence in the light most favorable to the Government, we are
convinced a rational factfinder could find beyond a reasonable doubt the appellant was
guilty of the offense. Upon our own review of the evidence in the record of trial, we are
personally convinced of the appellant’s guilt beyond a reasonable doubt.

                       Instruction on Mistake of Fact as to Consent

      We review a military judge’s instructions de novo. United States v. Dearing,
63 M.J. 478, 482 (C.A.A.F. 2006). “The military judge bears the primary responsibility
for ensuring that mandatory instructions . . . are given and given accurately.”
United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003); see also Rule for
Courts-Martial (R.C.M.) 920(a). If an affirmative defense is reasonably raised by the
evidence, the military judge has a sua sponte duty to instruct the members on that
defense. United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).

       In discussing proposed findings instructions, trial defense counsel argued that the
affirmative defense of mistake of fact as to consent had been raised by the evidence, as
the appellant “could have reasonably mistaken [LF’s] actions for consent” based on their
prior dating relationship, their prior history of engaging in consensual sexual intercourse
while intoxicated, and LF’s belief she may be engaging in intercourse with Amn JG on
the evening in question. The military judge denied the request, believing the instruction
would give the impression the appellant had to prove LF consented, thus creating an
impermissible burden shift on the issue of consent like that identified in United States v.


                                               5                                      ACM 38500
Prather, 69 M.J. 339, 343–44 (C.A.A.F. 2011). The appellant argues on appeal that the
military judge’s failure to provide an instruction on mistake of fact as to consent
constituted reversible error. We disagree.

       Generally, mistake of fact is a defense if “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.” R.C.M. 916(j)(1). In such a circumstance, the accused does not deny that he
committed the objective act at issue in the charge but denies criminal responsibility for it.
R.C.M. 916(a).

        The history of the mistake of fact defense relative to offenses under Article 120,
UCMJ, is complicated. Under the standard mistake of fact defense, the mistake need
only exist in the accused’s mind if it goes to an element requiring premeditation, specific
intent, willfulness, or knowledge of a particular fact; but if it goes to a general intent or
knowledge element, that belief must be reasonable under the circumstances.
R.C.M. 916(j)(1). However, in 2006, Congress created a statutory affirmative defense of
“mistake of fact as to consent” for certain sexual offenses, including aggravated sexual
assault, the predecessor offense to the one charged in this case. See MCM, app. 28 at
A28-5. Rule for Courts-Martial 916 was amended accordingly. R.C.M. 916(j)(3). To
constitute this defense, the mistake must have existed in the mind of the accused and
must have been reasonable under all the circumstances. Id. After certain aspects of the
statute’s burden shifting regime were deemed unconstitutional, Congress revised the
statute, with the changes effective 28 June 2012. In place of specific affirmative
defenses, the new Article 120, UCMJ, authorizes an accused to raise any applicable
defenses available under the Code or the R.C.M.s. See MCM, app. 23 at A23-15
(allowing an accused to raise a mistake of fact defense without the unworkable burden
shift). R.C.M. 916(j)(3) remains in the Manual and still uses the language from the
statutory affirmative defense, though it has not been modified to refer to the new
Article 120, UCMJ, offenses.

      This history, plus the creation of Article 120(b)(3), UCMJ, criminalizing sexual
conduct with unaware or impaired victims, has led some commentators to question
whether or when mistake of fact as to consent is an affirmative defense for that offense.2
2
  See Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, ¶ 3-45-14, note 17 (13 November 2013)
(noting that for a sexual assault charge, the military judge must carefully evaluate the evidence presented by both
sides to determine the applicability of the defense of “mistake of fact as to consent to the sexual conduct” and, if that
defense is applicable, should instruct the panel that the mistake must be honest and reasonable); Zachary Spilman,
Zachary D. Spilman on Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the
Uniform Code of Military Justice, LEXISNEXIS EMERGING ISSUES ANALYSIS 7277 (26 November 2014) (opining that
the language of Article 120(b)(3), UCMJ, includes a mistake of fact defense because an accused’s honest and
reasonable belief about the victim’s ability to consent would disprove the element of knowledge (which requires that
the accused “knew or reasonably should have known” of the victim’s circumstances)); Jim Clark, Professor Jim
Clark on Analysis of Crimes and Defenses 2012 UCMJ Article 120, Effective 28 June 2012, LEXISNEXIS EMERGING
ISSUES ANALYSIS 6423 (25 June 2012) (opining that key changes to the 2012 Article 120 have removed mistake of


                                                           6                                               ACM 38500
It is not necessary for us to resolve this question in this case because, even if we assume
arguendo that the affirmative defense applies to a case brought under this provision of
Article 120, UCMJ, we find the appellant was not prejudiced by the military judge’s
failure to give such in instruction.

        If an instructional error raises constitutional implications, such error is harmless if
it appears beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002);
United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014). Based on our review of the
record and considering the instructions provided, we find the panel would have
concluded beyond a reasonable doubt that (1) the accused did not actually believe LF
consented to the charged sexual conduct and (2) even if he did have such a mistaken
belief, that mistake was unreasonable.3 This conclusion is supported by the evidence of
their lack of a relationship prior to this incident, the events of the night in question, and
the appellant’s communications with LF after the incident.

        Although LF and the appellant had a prior sexual and dating relationship, the
evidence at trial was uncontroverted that LF broke off her relationship with the appellant
several weeks prior to the offense and wanted nothing more to do with him romantically
or sexually. LF’s testimony and the records of their electronic correspondence establish
that she bluntly and consistently rebuffed the appellant’s repeated efforts to resume their
relationship and that he acknowledged her lack of interest in him. Furthermore, although
trial defense counsel stated the two had a history of engaging in sex while they were
intoxicated, no evidence was presented at trial to support that claim. LF testified the two
did drink alcohol together during their dating relationship, but there was no evidence that
they were intoxicated during their sexual encounters.

       The appellant’s action on the night of the incident and over the following days
further establish beyond a reasonable doubt that the appellant did not believe LF was

fact as to consent as a defense to most charges, that mistake of fact only applies to elements of the crime and not
when an accused is merely asserting an alternative interpretation of facts, and that an accused’s claim he reasonably
should not have known of the victim’s condition is not a “mistake” but simply evidence that a reasonable person
would not have known of that condition); Major Mark Sameit, When a Convicted Rape is Not Really a Rape: The
Past, Present, and Future Ability of Article 120 Convictions to Withstand Legal and Factual Sufficiency Reviews,
216 MIL. L. REV. 77, 117 (2013) (opining that the Government’s burden to prove the elements of this offense
eliminates the affirmative defense of mistake of fact).
3
  The military judge instructed on the defense of consent, telling the members evidence of consent to the sexual act
is relevant to whether the prosecution has proven the elements beyond a reasonable doubt. The panel was also
instructed that evidence LF consented to the sexual act may cause a reasonable doubt as to whether the accused
knew or reasonably should have known that she was incapable of consenting due to impairment by an intoxicant
because “if you determine that [she] did consent you have necessarily concluded that she was capable of consent.”
He also instructed the panel (1) the Government must prove beyond a reasonable doubt that LF did not consent to
the sexual act; (2) her “lack of ability to consent” may be inferred from all the surrounding circumstances; (3) a
sleeping, unconscious, or incompetent person cannot consent to a sexual act; and (4) evidence of LF’s past sexual
history with the appellant may be considered in determining if LF consented and whether the appellant knew or
should have known she was incapable of consenting.


                                                         7                                              ACM 38500
consenting and that any such belief was not reasonable. As described above, LF was
highly intoxicated, and the appellant was aware of her condition, assuring LF’s sister that
he would take care of her and not touch her sexually. The following day, when LF asked
the appellant why he had sex with her when he knew she was drunk, the appellant did not
say he thought she had consented to the activity. When she pointed out to him that she
was “passed out” and awoke to him having sex with her, he did not contest that
statement.

       Based on the totality of the evidence presented at trial, we are firmly convinced
the Government would have successfully proven beyond a reasonable doubt that the
mistake of fact defense did not exist. Therefore, we conclude beyond a reasonable doubt
that any failure to instruct on mistake of fact did not contribute to the appellant’s
conviction. See United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007).

                             Evidentiary Objection Based on Foundation

       After LF arrived at the appellant’s house from the nightclub, the appellant spoke
telephonically with her sister, SrA SF, while she was at work. During some or all of their
conversation, SrA SF was using her speakerphone. Listening in, a few feet away from
SrA SF, was another individual, SrA RM. SrA RM testified at trial that he heard both the
appellant and LF as they spoke to each other while on the other end of the line. SrA RM
reported, “[LF] sounded drunk; slurred speech, had kind of a baby, you know, people get
a baby voice when they’re drunk.”

       Trial defense counsel objected to this description of how LF sounded on two
grounds: lack of foundation and hearsay.4 On appeal, the defense argues that the
military judge abused his discretion when he admitted the evidence because the
foundational requirements of Mil. R. Evid. 602 and 701 were not met. We disagree.

       We review a military judge’s decision to admit evidence for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
Id. (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)) (internal quotation
marks omitted).

      Mil. R. Evid. 602 addresses the issue of personal knowledge. The Rule states, “A
witness may not testify to a matter unless evidence is introduced sufficient to support a

4
  The appellant did not raise the latter issue on appeal. We have, nevertheless, considered the hearsay objection of
trial defense counsel. In doing so, we find that (1) the testimony of Senior Airman (SrA) RM did not involve any
statement made by LF, and (2) it was not offered for the truth of any matter asserted by LF. Rather, SrA RM’s
testimony was a description of how LF sounded when speaking. Thus, the testimony did not involve hearsay, and
the military judge was correct in overruling the objection. See Mil. R. Evid. 801(c).


                                                         8                                             ACM 38500
finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the testimony of the witness.”
Mil. R. Evid. 701 sets forth the criteria for admitting the opinions of a lay witness:

             If the witness is not testifying as an expert, the witness’
             testimony in the form of opinions or inferences is limited to
             those opinions or inferences that are (a) rationally based on
             the perception of the witness, (b) helpful to a clear
             understanding of the witness’ testimony or the determination
             of a fact in issue, and (c) not based in scientific, technical, or
             other specialized knowledge within the scope of Rule 702.

       In this case, the testimony of SrA RM complied with both Mil. R. Evid. 602 and
701. SrA RM testified that, on two or three occasions, he had socialized for some hours
at the appellant’s house while LF was present. SrA RM had engaged in conversations
with LF, both when she was sober and when she had been drinking. Based on this,
SrA RM had the requisite personal knowledge that it was LF on the other end of the
telephone.

       Likewise, the testimony of SrA RM complied with Mil. R. Evid. 701. SrA RM’s
testimony was rationally based upon his perceptions and his knowledge of LF, it was
helpful in determining the level of intoxication LF was experiencing at that time (and
thus whether LF was incapable of consenting to a sexual act due to impairment by an
intoxicant), and it was not based in scientific, technical, or other specialized knowledge
within the scope of Mil. R. Evid. 702.

       Therefore, the military judge did not abuse his discretion in allowing SrA RM to
opine that, when he heard LF on the phone, her speech was slurred and she sounded
drunk. See MCM, app. 22 at A22-51 (stating that whether or not a person was drunk is
within the potential scope of Mil. R. Evid. 701).

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                             9                                    ACM 38500
Accordingly, the approved findings and sentence are AFFIRMED.



            FOR THE COURT


            STEVE LUCAS
            Clerk of the Court




                                       10                       ACM 38500
