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

                           UNITED STATES, Appellee
                                        v.
                      Private E1 SHAWNDALE R. TEAGUE
                          United States Army, Appellant

                                   ARMY 20140394

                        Headquarters, 1st Cavalry Division
                   Patricia Lewis, Military Judge (arraignment)
                   Rebecca K. Connally, Military Judge (trial)
      Lieutenant Colonel R. Tideman Penland, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Alison C. Martin, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Michael A. Gold, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).


                                     15 March 2016
                               ---------------------------------
                                OPINION OF THE COURT
                               ---------------------------------

WOLFE, Judge:

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ].
The convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for eighteen months, and forfeiture of all pay and allowances.

       Appellant’s case is now before this court for review pursuant to Article 66,
UCMJ. On appeal, appellant’s lone assigned error warrants neither discussion nor
relief. Appellant raises three issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), one of which merits discussion but not relief.
TEAGUE—ARMY 20140394


                                   BACKGROUND

       On 4 December 2012, appellant and a friend, who was a fellow Soldier,
visited a Burger King restaurant in Killeen, Texas. While at the Burger King,
appellant and his friend ran into AC and two other teenage girls who attended the
local high school. They exchanged phone numbers. Later that night, after a series
of exchanged text messages, appellant and his friend picked up the three girls, drove
them onto Fort Hood, and went to appellant’s barracks room. Initially, the five
started watching a movie. Later, appellant, his friend, and the three high school
students began to drink vodka and dance. As the evening progressed, AC became
heavily intoxicated and went to sleep on a bed in appellant’s room.

        At some point later, appellant’s friend and one of the girls left the room. This
left appellant, AC, and the third girl, MR, remaining in the room. Then, MR went
outside to smoke. When she returned, she found the door to appellant’s room closed
and heard “sex moaning” coming from inside the room. After she knocked on the
door, appellant opened it and walked out of his room. MR walked into the room and
found AC on appellant’s bed. AC was naked from the waist down, covered in her
own vomit, and mumbling incomprehensibly. When asked how drunk AC was, MR
testified that on a “scale of 1-to-10” AC was “Gone. Like 10. She was gone.” The
defense presented evidence that AC was capable of consenting and argued that the
government’s proof was insufficient. A forensic exam would later reveal bruising
on AC’s thighs and two separate tears of her genitalia.

                                    DISCUSSION

                            Mistake of Fact as to Consent

       To prove the charged offense, the government was required to show appellant
committed a sexual act upon AC when AC was “incapable of consenting to the
sexual act due to an impairment by . . . [an] intoxicant . . . and that condition [was]
known or reasonably should [have been] known” by appellant. UCMJ art. 120(b)(3).
In other words, to sustain a conviction, the government had to prove beyond a
reasonable doubt that either appellant had actual knowledge that AC could not
consent or appellant reasonably should have known that AC could not consent.

       On appeal, appellant asserts that the findings are factually and legally
insufficient as the “government failed to prove . . . appellant did not have an actual




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TEAGUE—ARMY 20140394

and reasonable mistake of fact as to consent.” We find the defense of mistake of
fact as to consent is inapplicable to this offense. *

      For a mistake of fact as to consent to be raised, there must be “some
evidence” that appellant honestly and reasonably believed AC consented to the
sexual act. See Rule for Courts-Martial [hereinafter R.C.M.] 916(j).

       The issue this case presents is whether when the government has proven
beyond a reasonable doubt that an accused knew or reasonably should have known
that a victim was incapable of consenting, has the government also proven, as a
matter of logic, the accused could not have honestly and reasonably believed the
victim consented? We answer this question in the affirmative. If the government
proves that an accused had actual knowledge that a victim was incapable of
consenting, then, by definition, such an accused could not simultaneously honestly
have believed that the victim consented. Similarly, if the government proves that an
accused should have reasonably known that a victim was incapable of consenting,
the government has also proven any belief of the accused that the victim consented
was unreasonable.

       In other words, we cannot imagine a logically coherent set of circumstances
where the government has proven the elements of the offense and not simultaneously
disproven any mistake of fact regarding consent. By law, an accused cannot
simultaneously believe that a victim was incapable of consenting and also believe
that she had, in fact, legally consented. Nor can an accused simultaneously hold a
reasonable belief that a victim cannot consent while also reasonably believing she
did consent. For example, in United States v. Prather, 69 M.J. 338, 343 (C.A.A.F.
2011), our superior court, in a different context, found that proof of consent
implicitly requires proof of capacity to consent. It therefore follows that proof of
incapacity to consent must preclude actual consent.

       Put differently, mistake of fact as to consent can never be “in issue” under
R.C.M. 920(e)(3) with respect to this specific offense. There is no circumstance
where appellant could have committed the charged offense, but nonetheless put in
issue the affirmative defense of mistake of fact as to consent. See R.C.M. 916(a) (A
defense “includes any special defense which, although not denying that the accused



*
  The Specification of Charge I is as follows: “In that Private (E-1) Shawndale R.
Teague, U.S. Army, did, at or near Fort Hood, Texas on or about 4 December 2012,
commit a sexual act upon [AC], to wit: penetrated her vulva with his penis when
[AC] was incapable of consenting to the sexual act due to impairment by an
intoxicant and that condition was known or reasonably should have been known by
Private Shawndale R. Teague.”

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TEAGUE—ARMY 20140394

committed the objective acts constituting the offense charged, denies, wholly or
partially, criminal responsibility for those acts.”).

       This is not to say appellant was without options at trial. Evidence that AC
consented, or that appellant believed that AC had consented, served to attack the
elements of the offense. Such evidence was admissible to show AC’s capacity to
consent or that appellant reasonably believed AC had the capacity to consent. See,
e.g., United States v. Neal, 68 M.J. 289, 301 (C.A.A.F. 2010) (In evaluating consent
under Article 120, UCMJ, 10 U.S.C. § 920(e) (2006), evidence of consent is relevant
in disproving force).

       Yet another way to consider this issue is that Article 120(b)(2) and (3) already
require the government to disprove, as a matter of course, a mistake of fact defense.
That is, a mistake of fact defense is “baked in” to the elements of the offenses
themselves. If, by way of example, the offense requires only that an accused commit
a sexual act with someone who was incapable of consenting, it would be an
affirmative defense that the accused honestly and reasonably believed the person
was capable of consenting. By requiring the government prove that appellant knew,
or reasonably should have known that AC was incapable of consenting, the
government was required to disprove any defense of mistake of fact appellant may
have had with regards to AC’s ability to consent.

       Accordingly, we find the approved findings to be factually and legally
sufficient as the government proved that appellant committed a sexual act upon AC
while AC was incapable of consenting and “that condition was known or reasonably
should have been known by [appellant].”

                                   CONCLUSION

      The findings of guilty and the approved sentence are AFFIRMED.

      Senior Judge HAIGHT and Judge BURTON concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:



                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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