                       UNITED STATES, Appellee

                                    v.

       Michael C. DIPAOLA, Culinary Specialist Third Class
                       U.S. Navy, Appellant

                              No. 08-0200

                       Crim. App. No. 200602442

       United States Court of Appeals for the Armed Forces

                       Argued October 28, 2008

                      Decided December 18, 2008

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

                                 Counsel


For Appellant:    Captain S. Babu Kaza, USMC (argued).

For Appellee: Major Elizabeth A. Harvey, USMC (argued);
Commander Paul C. Leblanc, JAGC, USN (on brief); Lieutenant
Derek D. Butler, JAGC, USN.

Military Judge:   J. D. Bauer, P. H. McConnell, B. N. Roberts,
and E. G. Smith


       This opinion is subject to revision before final publication.
United States v. DiPaola, No. 08-0200/NA

     Judge ERDMANN delivered the opinion of the court.

     A panel of officer and enlisted members found Culinary

Specialist Petty Officer Third Class Michael C. DiPaola guilty

of one specification of making a false official statement and

two specifications of indecent assault in violation of Articles

107 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 907 and 934 (2000).1

     If the record contains “some evidence” of the affirmative

defense of mistake of fact “to which the military jury may

attach credit if it so desires,” the military judge is required

to instruct the panel on that affirmative defense.    United

States v. Hibbard, 58 M.J. 71, 72 (C.A.A.F. 2003) (citation and

quotation marks omitted).    We granted DiPaola’s petition to

determine whether the military judge erred in not instructing

the panel on the mistake-of-fact defense for one of the indecent

assault specifications.2    We hold that the record contained “some

evidence” of mistake of fact, that the military judge therefore

erred in failing to give a mistake-of-fact instruction on this

1
  DiPaola was charged with one specification of false official
statement in violation of Article 107, UCMJ, two specifications
of indecent assault and two specifications of indecent exposure
all in violation of Article 134, UCMJ. He was acquitted of the
two indecent exposure specifications.
2
  Specification 2 of Charge II charged that DiPaola “commit[ted]
an indecent assault upon [ED], U.S. Navy, a person not his wife,
by holding her down on her bed by her wrists, kissing her,
fondling and biting her breasts, sitting and laying on top of
her, touching her vaginal area with his hand, attempting to



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United States v. DiPaola, No. 08-0200/NA

specification, and that the error was not harmless beyond a

reasonable doubt.

                             Background

     DiPaola and Petty Officer ED met in the late winter of

2004, when they lived in the same barracks.     Initially their

relationship involved hanging out in each other’s rooms and

watching movies.    At some point, the relationship became sexual

and continued in that vein for several months.     The relationship

ended because ED “just didn’t want to pursue it any further,”
                                                   3
and the pair “just quit talking to each other.”

     In August 2004, when DiPaola returned from a deployment, he

went to see ED in her barracks room.      ED was “under the weather”

and feeling “real sick.”   DiPaola told her he had missed her

while he was away and wanted to go out with her.       ED did not

respond other than to tell him that she was not feeling well.

As she laid down on her bed, DiPaola laid down behind her; they

cuddled and fell asleep.

     Three days later when ED returned to her barrack’s room,

DiPaola was waiting for her.   She let him into her room, and

DiPaola told her that he wanted to have sex with her.      ED

responded that she did not want to have sex.     DiPaola kept



remove her underwear, and rubbing his erect penis against her
vaginal area, with intent to gratify his sexual desires.”
3
  As DiPaola exercised his right not to testify, all of the
testimonial evidence as to the incident in question came from
ED.

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United States v. DiPaola, No. 08-0200/NA

saying that he wanted to have sex and ED kept saying “no,” but

they then began consensually kissing and “making out” and

eventually moved to her bed.   ED stated she kissed him because

she “still had feelings for him.”    Once on the bed, ED testified

that she got on top of DiPaola and allowed him to remove her

shirt and they continued kissing and making out.   At some point

during their encounter, DiPaola kissed her breasts and then

started biting at her breasts.   When she told him not to bite

her breasts, he stopped.

     DiPaola switched positions so that he was on top of ED.      He

grabbed her wrists and held them down on the bed above her head.

DiPaola then attempted to unzip her pants, but ED managed to get

one hand loose and pulled up her zipper.   DiPaola continued to

say “Let’s have sex” and ED “just kept saying, ‘No,’ and he

wouldn’t listen.”   DiPaola tried begging ED for sex, which did

not amuse her, but when he began offering her such things as

marriage, children and his car, she found it amusing.   They were

both laughing during this exchange.

     DiPaola rubbed ED’s “crotch area” with his hand on top of

her pants and he put her legs on his shoulders and “acted like

he was having sex with [her].”   This position hurt ED’s wrists

and legs and she pushed and kneed him.   When DiPaola left the

bed, he removed his penis from his pants and began stroking it

with his hand.   ED told him to stop but DiPaola continued and



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United States v. DiPaola, No. 08-0200/NA

asked her several times for oral sex.     ED told him “no” and told

him she would “bite it off and spit it at him” if he came any

closer.   According to ED, DiPaola laughed as he thought she was

joking.   A few minutes later DiPaola stopped and said “he

couldn’t believe that it took so long, about an hour and a half,

for [ED] to keep saying no, and [for him to] finally giv[e]

up.”   DiPaola then left ED’s room.

       In a sworn statement to Naval Criminal Investigative

Service that was admitted into evidence, DiPaola acknowledged

that he asked ED to have sex with him, but she said, “No.”     He

then “decided to try and convince her to have sex with [him]”

until he understood that she was not going to change her mind

and have sexual intercourse with him.4

                             Discussion

       A military judge is required to instruct the panel on

affirmative defenses, such as mistake of fact, “if ‘the record

contains some evidence to which the military jury may attach

credit if it so desires.’”   Hibbard, 58 M.J. at 72 (quoting

United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)).     When

the defense has been raised by “some evidence,” the military

judge has a sua sponte duty to give the instruction.    Brown, 43

M.J. at 189 (citing Rule for Courts-Martial (R.C.M.) 920(e)(3)).


4
  It appears clear from the context of DiPaola’s statement, that
when he uses the term “sex” he is referring to “intercourse” as
opposed to the conduct charged in the specification.

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United States v. DiPaola, No. 08-0200/NA

     An accused is not required to testify in order to establish

a mistake-of-fact defense.    United States v. Jones, 49 M.J. 85,

91 (C.A.A.F. 1998).    The evidence to support a mistake-of-fact

instruction can come from evidence presented by the defense, the

prosecution or the court-martial.     Id. (citing R.C.M. 916(b)

Discussion).   In addition:

     [t]he defense theory at trial and the nature of the
     evidence presented by the defense are factors that may
     be considered in determining whether the accused is
     entitled to a mistake of fact instruction . . . .
     “Any doubt whether an instruction ‘should be given
     should be resolved in favor of the accused.’”

Hibbard, 58 M.J. at 73 (quoting Brown, 43 M.J. at 189)

(citations omitted).

     While an indecent assault offense5 includes a specific

intent element as to whether the touching was committed to

satisfy the lust or sexual desires of the accused, the lack of

consent element of the offense is a general intent element.

United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F. 1997).

“Accordingly, a mistake-of-fact defense on this element would

require both a subjective belief of consent and a belief that

was reasonable under all circumstances.”    Id. at 234-35.

     DiPaola argues that there was “some evidence” before the

panel that he honestly and reasonably believed ED consented to


5
  DiPaola was charged with indecent assaults while that offense
was still listed under Article 134, UCMJ. See generally Manual
for Courts-Martial, United States pt. IV, para. 63 (2005 ed.).



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United States v. DiPaola, No. 08-0200/NA

some of his actions.   In support of this argument he notes:

their prior consensual sexual relationship; ED’s consent to the

removal of her shirt and the kissing of her breasts after saying

“no” to intercourse; their mutual kissing and making out; their

laughter as to his offers of marriage, children and his car; and

his compliance when she told him to stop biting her breasts.

This evidence is put in context by the defense counsel’s request

for a mistake-of-fact instruction and the mistake-of-fact themes

raised in opening and closing statements.

     The Government responds that the dispute at trial did not

concern mistake of fact as to consent but focused on whether

there was consent.   It contends that because no evidence of a

mistake of fact as to consent was presented by either party, the

military judge was correct in not providing the instruction,

citing United States v. Willis, 41 M.J. 435 (C.A.A.F. 1995).

     In Willis, we found that the dispute at trial was limited

to actual consent and stated “that a mistake-of-fact instruction

is not warranted where the evidence raises and the parties

dispute only the question of actual consent.”   Id. at 438.    In

this case the facts present no such clear dichotomy.   While it

is well established that ED said “no” to sexual intercourse on

this day and also asked DiPaola to stop biting her breasts, it

is also clear that ED consented to and willingly participated in

some of the sexual acts listed in the specification, such as



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United States v. DiPaola, No. 08-0200/NA

kissing DiPaola and allowing him to take off her shirt and kiss

her breasts.   These consensual acts could be seen, in

conjunction with their past sexual relationship, as creating a

“mixed message” as to which acts were permissible and which were

off-limits.

     Nor did the theory of the defense case focus solely on

unambiguous consent as it did in Willis.   While the Government

argues that DiPaola’s defense counsel presented the members with

a “he said/she said” case, that argument ignores the approach

taken by DiPaola’s defense counsel in his opening and closing

statements.6   In his opening statement the defense counsel

stated:

          Members of the jury, there’s often a fine line
     between seduction and allegations of assault, and
     where that line falls, where it is drawn is what
     you’re going to have to decide in this case.

          . . . .

          There’s also no dispute that this relationship
     continued and was of a casual nature, as the evidence
     will show. What that means, and how casual a sexual
     relationship, will be again the testimony for you to
     decide, and whether it was on-going or off and on will
     also play a role in how this case is viewed, and
     whether or not, on previous occasions during the

6
  Although the defense at trial did ask for a “he said/she said”
instruction, a “military judge’s duty to instruct is not
determined by the defense theory; he must instruct if the
defense is raised.” United States v. Brown, 43 M.J. 187, 189
(C.A.A.F. 1995). The defense’s theory of the case is “not
dispositive in determining what affirmative defenses have been
reasonably raised by the evidence” but can be taken “into
account” when “considering [the] evidence.” Hibbard, 58 M.J. at
76.

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United States v. DiPaola, No. 08-0200/NA

     sexual relationship when a person said “no,” . . .
     “no” doesn’t always mean “no” in the course of a
     relationship.

During closing argument, the defense counsel returned to this

theme:

     And when I hear the government say “No means no, even
     a child understands that,” but not if you’ve been
     saying yes to the child. If you suddenly say no, that
     doesn’t mean that that child understands. And with
     adults, it’s even more complicated, because you have
     someone like [ED] saying yes, yes, yes, no once, yes,
     yes, yes. And therefore when the government makes the
     argument, “If you say no, that’s the end of it,” we
     all know that that’s not the case and that’s an
     oversimplification of all human behavior.

     Here DiPaola’s defense counsel raises the possibility of a

“mixed message” that courts have considered in determining

whether a mistake-of-fact instruction should have been given.

See United States v. Buckley, 35 M.J. 262, 264 (C.M.A. 1992).

While the record clearly reflects that DiPaola wanted to have

sex with ED and on the day in question she did not, the pair did

not have sexual intercourse that day.   The record also reflects

that ED consented to some of the conduct at issue in the

specification.   The conduct and conversations of the parties

during the encounter, as informed by the “mixed message” defense

theme, provide “some evidence” that could support an honest

(subjective) and reasonable (objective) belief as to consent to

some or all of the alleged acts.

     DiPaola’s defense counsel also requested a mistake-of-fact

instruction regarding DiPaola’s belief that he had ED’s consent


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United States v. DiPaola, No. 08-0200/NA

to act as he did.   The military judge declined to give a

mistake-of-fact instruction on this specification, mistakenly

believing that such a defense was not available for an indecent

assault offense.    While the military judge has a sua sponte duty

to give such an instruction even in the absence of a defense

request, counsel’s request for the instruction is indicative of

the defense’s theory of the case and can be considered by

appellate courts as context for whether the entire record

contains “some evidence” that would support the instruction.

See Hibbard, 58 M.J. at 73 (stating that the defense theory at

trial is a non-dispositive factor).

     When “some” evidence exists in the record, the military

judge must give a mistake-of-fact instruction.   See United

States v. Taylor, 26 M.J. 127, 129-30 (C.M.A. 1988).     Here the

record reveals a “mixed message” evidentiary situation which,

when considered in conjunction with defense counsel’s “mixed

message” theme in his opening and closing statements and his

request of a mistake-of-fact instruction, comprises “some

evidence” of a mistake of fact that the panel could attach

credit to if it so desired.   Accordingly, the military judge

erred in not instructing the panel on mistake of fact.

     Once it is determined that a specific instruction is
     required but not given, the test for determining
     whether this constitutional error was harmless is
     whether it appears “beyond a reasonable doubt that the
     error complained of did not contribute to the verdict
     obtained.” Chapman v. California, 386 U.S. 18, 24


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United States v. DiPaola, No. 08-0200/NA

     (1967). Stated differently, the test is: “Is it
     clear beyond a reasonable doubt that a rational jury
     would have found the defendant guilty absent the
     error?” Neder v. United States, 527 U.S. 1, 18
     (1999).

United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).

     In the context of this case, we cannot say that the absence

of a mistake-of-fact instruction on this offense was harmless

beyond a reasonable doubt because that instruction resulted in a

finding of not guilty when given with respect to another charge

involving the same victim in the same setting.    The defense

requested and the military judge gave a mistake-of-fact

instruction for the indecent exposure offense stemming from

DiPaola removing his penis from his pants in ED’s presence

immediately after the events on the bed occurred.   The mistaken

belief at issue in the indecent exposure specification focused

on whether ED would find the exposure offensive.    In giving that

mistake-of-fact instruction, the military judge instructed the

panel to consider the prior relationship and all the

circumstances leading to the exposure.   The panel subsequently

found DiPaola not guilty of that specification.

     Had the military judge given a mistake-of-fact instruction

informing the panel to consider the prior relationship and the

circumstances leading up to the indecent assault incident, we

are unable to find beyond a reasonable doubt that the panel

would have found DiPaola guilty.    See Chapman, 386 U.S. at 24.



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United States v. DiPaola, No. 08-0200/NA

The missing instruction “essentially undercut [a] defense theory

and could very well have contributed to the finding of guilty.”

United States v. Lewis, 65 M.J. 85, 89 (C.A.A.F. 2007).

                              Decision

     The military judge erred in failing to instruct the panel

on the affirmative defense of mistake of fact and that error was

not harmless beyond a reasonable doubt.    Accordingly, those

portions of the decision of the United States Navy-Marine Corps

Court of Criminal Appeals which affirmed Specification 2 of

Charge II and the sentence are reversed.   The remaining findings

are affirmed.   The finding for Charge II, Specification 2 and

the sentence are set aside.   The record is returned to the Judge

Advocate General of the Navy for remand to the convening

authority for a rehearing on findings on that specification

and/or sentencing.




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United States v. DiPaola, No. 08-0200/NA


     STUCKY, Judge (dissenting):

     The majority reaches its conclusion by limiting the

evidence it considers and by reducing the mistake of fact

defense to a one-dimensional test.    The evidence did not

reasonably raise a mistake of fact defense as to the indecent

assault specification.   Therefore, I respectfully dissent.

     As noted by the majority, in early 2004, Appellant and

Petty Officer ED had a consensual sexual relationship that

lasted “a couple of months.”   On occasion during that

relationship, Petty Officer ED had declined to have sex with

Appellant, and he had always respected her wishes.   She

terminated the relationship because she “didn’t want to pursue

it any further.”   Thereafter, they had no contact for some time.

     On August 12, 2004, Petty Officer ED was sick in quarters.

Appellant knocked on her door and, when she answered, said he

had been deployed, missed her, and wanted to go out with her.

She did not answer, except to say she was sick, and to lie down

on her bed.   He lay down beside her, and they both fell asleep.

When she awoke, Appellant was gone.

     On August 15, 2004, Petty Officer ED was still sick in

quarters.   She went out for food, and upon returning found

Appellant standing outside her door.   She let him into her room,

whereupon he asked her for sex.    She said, “no,” as she did not

feel well and did not want to.    He continued his efforts to
United States v. DiPaola, No. 08-0200/NA


convince her to have sex with him by kissing her and touching

her breasts.    While Petty Officer ED willingly permitted him to

do so, she continued to decline his entreaties for sex by saying

“no.”    He removed her shirt and lay on the bed.    She “got on top

of him” and they continued kissing.    But then Appellant “flipped

[her] over on [her] back, and then he grabbed [her] wrists and

put them above [her] head to hold [her] down.”      She continued to

say that she did not want to have sex with him.

        While holding her down, Appellant tried to unzip her pants.

She was able to get a hand loose and pulled the zipper back up.

He got both of her hands above her head again and, while he was

clothed, he started to rub his erect penis over her vaginal

area.    He squeezed, kissed, and bit her breasts.   When she told

him not to bite her breasts, he stopped biting them.     He rubbed

his hand over her clothed crotch, put her legs over his

shoulders, and again simulated having sex with her.     She kept

saying “ouch” because he was hurting her by squeezing her wrists

and because of how he had her legs positioned.      She kneed him,

but was unsuccessful in dislodging him.    Appellant was even

begging her to have sex with him, even offering her marriage,

children, money, and the opportunity to drive his car.     That

caused them both to laugh.

        After Appellant got off Petty Officer ED, he removed his

penis from his pants, began stroking it with his hand, and asked


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United States v. DiPaola, No. 08-0200/NA


for Petty Officer ED to “suck” it.     She kept telling him “no”

and told him if he came any closer she would bite off his penis.

He laughed at that, put his penis back into his pants, zipped

them up, and sat on the bed with her.    She put her shirt back

on.   Appellant then exclaimed that he was amazed at how long it

took for her “no” to sink in.    Appellant then left the room.

        As part of the investigation into Appellant’s conduct, the

Naval Criminal Investigative Service (NCIS) had Petty Officer ED

make a telephone call to Appellant.    During the call, Appellant

explained his persistence in trying to have sex with Petty

Officer ED as “’cause ah, sometime a guy gets desperate and do

whatever they have to do to get laid.”    When she suggested that

he usually quits after the first couple of “no’s,” he stated:

        Nah, I, I don’t like giving up on things. I, I, I, I
        try hard, I work hard on, on, on what I do and and
        when I want something, I fight for it. So, um, if it
        takes me a lot of no’s to finally realize that it’s
        not happening, then that’s what it’s going to take.

She then asked if he remembered her saying “ouch” a few times

when he held her down.    He said he did not.   Later, after

explaining that he never meant to bruise or hurt her, Appellant

said:

        Sometimes when I play, I get a little rough and
        sometimes girls tell me that I’m getting rough. You
        might have said ouch, but it might have been more like
        a seductively [sic] ouch.

        . . . .



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United States v. DiPaola, No. 08-0200/NA


     There’s a lot of types of ouch. If you would have
     said that actually does hurt, I probably would have
     stopped.

     When Appellant was interviewed by NCIS agents, he admitted

that, during the forty-five to sixty minutes he was trying to

have sex with Petty Officer ED, she told him “no” a lot.    “She

was getting frustrated and started to raise her voice at me as

she said ‘No.’”   Appellant “came to understand that she was not

going to change her mind” and have sex with him.

     After the parties rested, the defense counsel asked the

military judge to give a mistake of fact instruction for the

indecent assault specification at issue.   The military judge

questioned whether mistake of fact as to consent was a defense,

asserting that the only element requiring specific intent was

the specific intent to gratify his sexual desires.    The civilian

defense counsel conferred with his military colleague and moved

on to requesting a mistake of fact instruction as to indecent

exposure and some of the lesser included offenses, which the

military judge gave.   Neither the parties nor the military judge

further discussed the mistake of fact instruction as to the

indecent assault offense, and the military judge did not give

such an instruction.

     An honest and reasonable mistake of fact as to consent is

an affirmative defense to indecent assault.   United States v.

Peterson, 47 M.J. 231, 234-35 (C.A.A.F. 1997).     The military


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United States v. DiPaola, No. 08-0200/NA


judge must give a mistake of fact instruction if the issue is

reasonably raised by the evidence unless it is affirmatively

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

2007).    To warrant an instruction there must be some evidence

that Appellant had “both a subjective belief of consent and a

belief that was reasonable under all the circumstances.”

Peterson, 47 M.J. at 234-35.     “It is not necessary that the

evidence which raises an issue be compelling or convincing

beyond a reasonable doubt.   Instead, the instructional duty

arises whenever ‘some evidence’ is presented to which the fact

finders might ‘attach credit if’ they so desire.”      United States

v. Taylor, 26 M.J. 127, 129-30 (C.M.A. 1988) (quoting United

States v. Simmelkjaer, 18 C.M.A. 406, 410, 40 C.M.R. 118, 122

(1969)); accord United States v. Hibbard, 58 M.J. 71, 72

(C.A.A.F. 2003).   But “a mistake of fact instruction is not

warranted where the evidence raises and the parties dispute only

the question of actual consent.”       United States v. Willis, 41

M.J. 435, 438 (C.A.A.F. 1995).

     The evidence did not raise mistake of fact as to the

specification alleging the indecent assault of Petty Officer ED.

Although some evidence of record suggests the reasonable

possibility that Petty Officer ED was consenting to Appellant’s

conduct, there was no evidence that Appellant actually believed

the victim was consenting.   United States v. Jones, 49 M.J. 85,


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United States v. DiPaola, No. 08-0200/NA


91 (C.A.A.F. 1998).   In fact, the evidence demonstrates the

contrary -- Appellant honestly believed she was not consenting

but thought that if he persisted she might eventually give up

and give in.

     Appellant relies on (1) statements he made during the

pretext telephone call and (2) Petty Officer ED’s testimony to

establish the need for a mistake of fact instruction.   He points

to the following statements he made during the pretext phone

call to show the defense of mistake of fact was raised:

     (a)   “So, honestly I might not have really even done

anything to you that hard to get a bruise on you.”

     (b)   “I didn’t do it in a mean way. . . . I was probably

just playing with you.   Sometimes when I play, I get a little

rough and sometimes girls tell me that I’m getting rough.     You

might have said ouch, but it might have been more like a

seductively [sic] ouch.”

     (c)   “I didn’t feel bad at the time, because I really

didn’t know I left bruises on you . . . .”

These statements are not evidence that Appellant believed Petty

Officer ED consented to his advances.   They merely tend to show

that he did not intend to cause bruising or to hurt her.

     Appellant asserts that Petty Officer ED sent him mixed

messages about her willingness to have sex and that permitting

him to engage in some sexual acts -– such as removing her shirt,


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United States v. DiPaola, No. 08-0200/NA


fondling and kissing her breasts -- misled him into believing

she would permit him to engage in others.    The majority seems to

find this argument persuasive.   I do not.

     This was a couple with a sexual history, and the sex had

been by mutual consent.   Petty Officer ED would consent to some

acts but not others.   When she said “no,” he stopped.   Evidence

that she willingly participated in some sexual conduct might be

sufficient evidence to raise the objective prong of the mistake

of fact defense, but there is no evidence “appellant actually or

subjectively did infer consent based on these circumstances.”

Willis, 41 M.J. at 438.

     I dissent.




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