                       UNITED STATES, Appellant

                                    v.

                     Samuel D. ZACHARY, Sergeant
                         U.S. Army, Appellee

                              No. 06-5001

                       Crim. App. No. 20020984

       United States Court of Appeals for the Armed Forces

                       Argued February 8, 2006

                       Decided August 14, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                 Counsel

For Appellant: Captain Larry W. Downend (argued); Major Natalie
A. Kolb, Captain Isaac C. Spragg, and Captain Edward Wiggers (on
brief).

For Appellee: Captain Eric D. Noble (argued); Lieutenant
Colonel Kirsten V. C. Brunson and Major Billy R. Ruhling II (on
brief); Colonel John T. Phelps II.

Military Judge:   Stephen R. Henley


       This opinion is subject to revision before final publication.
United States v. Zachary, No. 06-5001/AR


      Chief Judge GIERKE delivered the opinion of the Court.

      Pursuant to Article 67(a)(2), Uniform Code of Military

Justice (UCMJ),1 the Judge Advocate General of the Army certified

to this Court this issue:

            WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
            APPEALS ERRED WHEN IT FOUND THAT THE MISTAKE OF FACT
            DEFENSE WAS AVAILABLE TO SERGEANT SAMUEL D. ZACHARY
            AGAINST A CHARGE OF INDECENT ACTS WITH A CHILD
            (ARTICLE 134, UCMJ), WHICH IS CONTRARY TO THE HOLDING
            OF UNITED STATES V. STRODE, 43 M.J. 29 (C.A.A.F.
            1995).

      At its core, this certified issue asks us to determine

whether an honest and reasonable mistake of fact as to the

victim’s age is an available defense to the crime of indecent

acts with a child.2     In a published opinion, the United States

Army Court of Criminal Appeals concluded that it was.3        The Army

court further concluded that Appellee’s assertion, that he



1
  10 U.S.C. § 867(a)(2) (2000).        The relevant text of Article 67,
UCMJ, states:

      (a) The Court of Appeals for the Armed Forces shall review
      the record in --

        . . . .

         (2) all cases reviewed by a Court of Criminal Appeals
         which the Judge Advocate General orders sent to the Court
         of Appeals for the Armed Forces for review. . . .
2
  Article 134, UCMJ, 10 U.S.C. § 934 (2000).
3
  United States v. Zachary, 61 M.J. 813, 825 (A. Ct. Crim. App.
2005) (“We hold that it is a defense to indecent acts with a
child that, at the time of the act, the accused had an honest
and reasonable belief that the person with whom the accused
committed the indecent act was at least sixteen years of age.”).

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United States v. Zachary, No. 06-5001/AR


mistakenly believed the alleged victim was over seventeen years

of age, set forth matter inconsistent with his guilty plea.4

      We agree with the Army court both as to the application of

the mistake of fact defense in this factual context and as to

the impact of this legal conclusion on Appellee’s case.    We

reaffirm our decision in United States v. Strode,5 which held

that the defense of mistake of fact is available to a military

accused who is charged with committing indecent acts with a

child.6    We hold in this case that Appellee’s statements as to

the victim’s age raised the possibility of a mistake of fact

defense to the crime of indecent acts with a child and, thereby,

rendered Appellee’s guilty plea to this offense improvident.       We

answer the certified question in the negative.

                                 BACKGROUND

      At his general court-martial, Appellee pleaded guilty to

two offenses arising from his performing oral sodomy on each of

his victims.    These offenses are punishable under Article 134,

UCMJ.7    The lower court’s discussion of the facts states the




4
  Id. at 825.
5
  43 M.J. 29 (C.A.A.F. 1995).
6
  Id. at 32.
7
  10 U.S.C. § 934 (2000). “After findings were announced, the
military judge granted a defense motion to consolidate the
offenses into one specification, including both of the
allegations contained in the original specifications. The
military judge dismissed the indecent acts with another
specification.” Zachary, 61 M.J. at 814 n.1.

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United States v. Zachary, No. 06-5001/AR


circumstances of Appellee’s offenses as they were developed in

the context of Appellee’s providence inquiry:

       Appellant pled guilty to one specification of committing
       indecent acts with a child, [BA] and one specification of
       committing indecent acts with another, [RL]. During the
       providence inquiry, appellant testified under oath about
       the facts and circumstances of the offenses. Appellant
       explained that he was in a friend’s room and the situation
       “got sexual in nature.” He admitted that he performed oral
       sodomy on both BA and RL, while all three [Appellee in the
       action before this Court, BA, and RL] were present in the
       room; that he was not married to either [BA or RL]; and
       that the acts were done with the intent to arouse the lust
       and sexual desires of BA. He also agreed that the acts
       were “open and notorious” because a third person was
       present; that the acts were indecent; and that they were
       prejudicial to good order and discipline and service
       discrediting.8

       Appellee further asserted that both BA and RL told him they

were seventeen years old, and that they were about to turn

eighteen.    In fact, at the time of the offenses, RL was

seventeen years old, and BA was fourteen years old.   Appellee

also stated he did not discover BA’s true age until a Criminal

Investigation Division agent told him of this case two weeks

later.9

       Because the certified issue relates only to Appellee’s

offense concerning his sexual involvement with BA, we focus on

record references to Appellee’s apparent belief that BA was

seventeen when she was in fact only fourteen.   Relevant

discussion of this important factual matter occurred at two


8
    Id. at 815 (footnotes omitted).
9
    Id.

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United States v. Zachary, No. 06-5001/AR


points during trial:        during the providence inquiry and during

sentencing.10

                       1.    The Providence Inquiry

      Appellee and the military judge discussed Appellee’s sexual

conduct with BA (Specification 1):

      MJ: Now, with respect to Specification 1; and [defense
      counsel], your theory of liability in pleading Sergeant
      Zachary guilty, is that the indecency is not connected to
      the age of [BA], but rather the fact that the oral sodomy
      was performed on her by the accused in the presence of a
      third party. Is that it?

      DC:    That’s correct, Your Honor.

      MJ: So even though Sergeant Zachary may have been mistaken
      about [BA’s] age, that mistake is not a defense to this
      offense, because the indecency, as well as the element of
      prejudicial conduct and service discrediting conduct, is
      tied to the nature of the act itself; that is, that the act
      of oral sodomy was open and notorious; that is, performed
      in the presence of a third party.

      DC:    That’s correct, Your Honor.

      MJ:    Do you understand that, Sergeant Zachary?

      ACC:   Yes, sir.

      MJ:    Is that your understanding, [trial counsel]?

      TC:    Yes, Your Honor.

     Later, the military judge reexamined the mistake of fact

issue:

      MJ: And I think we alluded to this briefly, [defense
      counsel], but you did have a chance to do your research

10
  Regarding the second female victim, RL, the Government charged
Appellee with indecent acts with another (Specification 2).
This appeal concerns only the crime against BA, indecent acts
with a child (Specification 1).

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United States v. Zachary, No. 06-5001/AR


      into a mistake of fact defense on Specification 1, as it
      relates to the age of [BA]?

     DC:    That’s correct, Your Honor.

      MJ: And are you satisfied that the mistake of fact defense
      does not exist in this case?

      DC:   That’s correct, Your Honor.

      MJ: And you had a chance to discuss this in some detail
      with Sergeant Zachary?

      DC:   Yes, Your Honor.

      MJ: And again, that’s because the indecency is tied
      directly to the number of participants, rather than the age
      of the putative victim; correct?

      DC:   That’s right, Your Honor.

      Repeatedly throughout the providence inquiry, the

prosecution, defense, military judge, and Appellee agreed that

the criminality of the indecent acts with a child offense was

rooted only in the fact that the events occurred “openly and

notoriously” –- in the presence of a third party, RL.

Therefore, everyone at trial failed to recognize that the

victim’s minor status was a separate and essential element of

the crime.11   The military judge accepted Appellee’s guilty plea.

                              2.   Sentencing

      During sentencing, Appellee presented an unsworn statement

to the panel members.      Appellee explained that prior to the

acts, both BA and RL told Appellee they were seventeen years


11
  Manual for Courts-Marital, United States pt. IV, para. 87
(2005 ed.) (MCM).

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United States v. Zachary, No. 06-5001/AR


old, and about to turn eighteen.           Appellee further explained

that at the time the incident occurred with BA and RL, he

“believed [he] was operating with consenting adults.”

      Appellee also stated he assumed BA and RL were at least

seventeen years old.      His assumption was based on his previous

experience where a staff duty person at the front desk would

check the identification cards of any person entering the post.

Appellee stated that he thought minors were prohibited from

entering the post at night because he believed that there was a

Charge of Quarters present who followed identification check

procedures.    Appellee further explained that he had been at this

post only two weeks at the time of the alleged offenses.          He

later learned that there was not a procedure to ensure that

underage persons were prohibited from entering the post.

      During closing arguments at sentencing, the trial counsel

characterized Appellee’s mistaken belief regarding BA and RL’s

age as “a boldfaced lie,” and told the panel members that

Appellee “knew how old [BA] was.”          At the close of the

proceedings, the panel members sentenced Appellee to a bad-

conduct discharge, forfeiture of all pay and allowances, and

reduction to E-1.




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United States v. Zachary, No. 06-5001/AR


                                 DISCUSSION

      In a thorough opinion tracing the history of Article 134,

UCMJ, and relying on our opinion in United States v. Strode,12

the Army court held that the affirmative defense of mistake of

fact is available for the offense of indecent acts with a

child.13    In response to the certified issue, we address this

question:    Whether an honest and reasonable mistake of fact as

to the alleged victim’s age is a mitigating factor relevant to

the degree of Appellee’s culpability, or rather is a valid

defense, because it negates an element of the Article 134, UCMJ,

offense of indecent acts with a child.

      The Army court held the answer was the latter.14   We agree.

We embrace not only the conclusion of the lower court but also

its excellent analysis explaining the law of mistake of fact as

it applies to the crime of indecent acts with a child.

      1.    Article 134, UCMJ, and the Applicability of the Mistake
                            of Fact Defense

      In analyzing offenses charged under the general article,

Article 134, UCMJ, we look at both the statute and the

President’s explanation in MCM pt. IV, para. 87 to determine the

12
   United States v. Strode, 43 M.J. 29 (C.A.A.F. 1995).
13
   Zachary, 61 M.J. at 821-25.
14
   Id. at 817-25. The lower court reasoned that in light of
Congress’ intent to make the age of the victim an element of the
crime, Appellant (here Appellee) had the mistake of fact defense
available to him at the time he pled guilty. Because all
parties mistakenly believed the defense was not available,
Appellee’s plea to Specification 1, indecent acts with child BA,
was improvident. Id. at 825.

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United States v. Zachary, No. 06-5001/AR


elements of the offense.       With respect to the alleged offense

with BA, the Government charged Appellee with indecent acts with

a child under Article 134, UCMJ.           The statutory elements of

Article 134, UCMJ are:      (1) that the accused did or failed to do

certain acts; and (2) that, under the circumstances, the

accused’s conduct was to the prejudice of good order and

discipline in the armed forces or was of a nature to bring

discredit upon the armed forces.15          The President has identified

the offense of indecent acts with a child as a specific offense

under Article 134, UCMJ, and set forth the following elements

for this offense:

       (a) That the accused committed a certain act upon or with
       the body of a certain person;

       (b) That the person was under 16 years of age and not the
       spouse of the accused;

       (c) That the act of the accused was indecent;

       (d) That the accused committed the act with intent to
       arouse, appeal to, or gratify the lust, passions, or sexual
       desires of the accused, the victim, or both; and

       (e) That, under the circumstances, the conduct of the
       accused was to the prejudice of good order and discipline
       in the armed forces or was of a nature to bring discredit
       upon the armed forces.16

       As to possible defenses to this offense, we note that the

President’s discussion directly excludes only one recognized

defense –- consent.      The explanation states simply, “Consent:


15
     MCM pt. IV, para. 60.b.
16
     MCM pt. IV, para. 87 (emphasis added).

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United States v. Zachary, No. 06-5001/AR


Lack of consent by the child to the act or conduct is not

essential to this offense; consent is not a defense.”17

      It is a basic principle of criminal law that an honest and

reasonable mistake of fact can negate the mens rea requirement

to a general intent crime.18       Incorporating this concept into

military law, the President in the MCM has specifically stated

that mistake of fact is a defense where, if the circumstances

were as the accused believed them to be, “the accused would not

be guilty of the offense.”19       We agree with the Army court’s

well-reasoned conclusion that neither the President nor Congress

intended age to be a strict liability element as to the crime of

indecent acts with a child.20




17
   Id. para. 87.c.(1) (emphasis added).
18
   United States v. Greaves, 40 M.J. 432, 437; see 1 Charles E.
Torcia, Wharton’s Criminal Law § 78 (15th ed. 1993).
19
   R.C.M. 916(j)(1).
20
   Zachary, 61 M.J. at 821. The lower court applied a thorough
examination of the intended mens rea for the offense of indecent
acts with a child. Referring to the element setting forth the
minor status of the victim, the lower court reasoned that this
element:

      does not require specific knowledge or intent.
      Furthermore, there is no indication in either the plain
      language of the MCM or in the history of the offense that
      it was intended as a strict liability element where
      knowledge or intent is immaterial. Therefore, the element
      must fall within the second class of elements described in
      R.C.M. 916(j)(1), which requires only general intent or
      knowledge.”

Id. at 823 (footnote omitted).

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United States v. Zachary, No. 06-5001/AR


                      2.   United States v. Strode

      Indeed, this Court addressed the applicability of the

mistake of fact defense under factually similar circumstances in

United States v. Strode.21      In Strode we expressly stated,

“Mistake of fact is available to a military accused who is

charged with committing indecent acts with a child under the age

of 16 if he had an honest and reasonable belief as to the age of

the person and if the acts would otherwise be lawful were the

prosecutrix age 16 or older.”22       The lower court identified and

properly relied on the authority of Strode and concluded that

the mistake of fact defense applied in the present case.23

      We note that in 1995, when we decided Strode, the mistake

of fact of age defense was not available to the strict liability

offenses of carnal knowledge and sodomy.24       Soon after Strode,

however, this law changed.       In 1996, Congress amended Article

120(b), UCMJ,25 the carnal knowledge statute, to recognize a

mistake of fact defense by a military member who reasonably


21
   43 M.J. at 32-33. In Strode, the accused pled guilty to
indecent acts with a child. As opposed to the instant case, the
indecency and service-discrediting conduct in Strode was based
on the child status of the victim. This factual distinction
between the cases does not diminish the authority of Strode as
to the availability of the mistake of fact defense to the
Article 134, UCMJ, offense of indecent acts with a child.
22
   Id. at 33 (emphasis added).
23
   Zachary, 61 M.J. at 822.
24
   Article 120(b) and Article 125, UCMJ, 10 U.S.C. §§ 920(b), 925
(1994), respectively.
25
   National Defense Authorization Act for Fiscal Year 1996, Pub.
L. No. 104-106, 110 Stat. 186 (codified in 10 U.S.C. § 920(d)).

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United States v. Zachary, No. 06-5001/AR


believed the victim had attained the age of sixteen and the

victim was, in fact, at least twelve years old.26   The practical

effect of this amendment is that mistake of fact as to age is

now a clearly delineated defense for the crimes of sodomy and

carnal knowledge.27

      We view these legal developments after Strode as

buttressing our conclusion and holding in that case.28   Again we

agree with the reasoning of the lower court that it is illogical

and unjust to recognize mistake of fact as to the alleged

victim’s age as a complete defense to a carnal knowledge offense

under Article 120(d), UCMJ, but not to recognize the same

defense to the lesser included offense of indecent acts with a

child.29




26
   Pub. L. No. 104-106, § 1113(b), 110 Stat. 462 (1996).
27
   This point is bolstered through an examination of the crime of
sodomy. MCM pt. IV, para. 51.d. lists the “lesser included
offenses.” Near the top of this list is the crime of “indecent
acts with a child under 16.”
28
   The congressional intent in codifying an affirmative defense
in 10 U.S.C. § 920(d) was to modify the UCMJ “to conform to the
spirit of the Sexual Abuse Act of 1986 (18 U.S.C. §§ 2241-
2245).” S. Rep. No. 104-112, at 1 (1995). Under 18 U.S.C. §
2243, all sexual acts, sodomy, carnal knowledge, and indecent
acts are grouped together. The mistake of fact defense is
provided for all the sexual acts in this grouping. Thus, it
follows that the defense of mistake of fact is available to the
Article 134, UCMJ, offense of indecent acts with a child under
sixteen.
29
   Zachary, 61 M.J. at 825.

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United States v. Zachary, No. 06-5001/AR


                    3.   The Government’s Assertions

      The Government’s basic argument challenging the Army

court’s holding is that, because the indecency of the act

against BA is tied to the “open and notorious” nature of the act

rather than to BA’s minor status, the mistake of fact of age

defense is not available.30

      The Government makes two main points in support of this

assertion.    First, the Government argues that for the purposes

of proving the elements of indecent acts with a child, the

mistaken belief that the victim was over sixteen years old is

only relevant in extenuation and mitigation.     We disagree.   The

Army court properly concluded that the minor status of the

victim is an element of the offense of indecent acts with a

child.   There is nothing in the plain language of the article

setting out the offense of indecent acts with a child or the MCM

explanation of this offense indicating that the minor status of

the victim is merely an aggravating factor in determining the

degree of Appellee’s guilt.

      The Government’s second point is that the Army court’s

holding violates this Court’s narrow holding in Strode.31

Specifically, the Government states that the lower court erred

in interpreting the language of Strode to allow for the “mistake

30
   In this case, the act was open and notorious because Appellee
engaged in foreplay with both BA and RL in the presence of the
other.
31
   43 M.J. at 33.

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United States v. Zachary, No. 06-5001/AR


of fact” defense in cases where the indecency is based on

something other than the victim’s age.      The flaw in this

argument is that it focuses only on the element that the act of

the accused was indecent, and it fails to take into account that

the prosecution also must prove the additional element of the

charged offense that the victim was under the age of sixteen.

      We acknowledge that, as developed in the providence

inquiry, the indecency in the present case was based only on the

fact that Appellee’s alleged sexual contact with BA was in the

presence of RL.     Specifically, during the providence inquiry,

the military judge elicited multiple concessions on the record

by Appellee and both counsel that the indecency was tied to the

contemporaneous presence of the second victim, RL, rather than

to the age of the putative victim, BA.      Moreover, both trial and

defense counsel reaffirmed this point on the record.

      Therefore, in this particular case, the age of the child

was not a fact necessary to establish the indecency of

Appellee’s acts with BA.       We observe that the additional fact of

the presence of RL establishes only the offense of indecent acts

with another, assuming other elements of the offense are

established in this case.

      To prove the more serious offense of indecent acts with a

child, the Government must also prove the additional fact and




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United States v. Zachary, No. 06-5001/AR


element that the child was under the age of sixteen.32         The

Government’s argument on appeal repeats the military judge’s

error in concluding that a mistake of fact defense as to the age

of the child was not available because the Appellee’s conduct

was otherwise indecent.      The fundamental error in the

Government’s argument is the assumption that because the

presence of the third party would support the element of

indecency, the mistake of fact as to the age of the victim would

not be available as a defense.

       Because the age of the victim remained a separate element

of the charged offense of indecent acts with a child, mistake of

fact remained a possible defense.          We agree with the lower court

that a mistake of fact defense is available as to the offense of

indecent acts with a child regardless of whether other facts may

establish indecency.33

       For the foregoing reasons, we agree with the Army court

that the minor status of the victim is an element of the offense

of indecent acts with a child, not an aggravating factor.34          We

hold the Army court correctly applied our decision in Strode to

conclude that an honest and reasonable mistake of fact defense

as to the victim’s age under Article 134, UCMJ, does not fall




32
     MCM pt. IV, para. 87.
33
     61 M.J. at 824-25.
34
     See id. at 825.

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United States v. Zachary, No. 06-5001/AR


away simply because the act is indecent for reasons other than

the victim’s minor status.35

                   4.   Providence of the Guilty Plea

      A guilty plea is set aside upon a showing that a

“substantial basis in law and fact for questioning the guilty

plea” exists.36    This Court has held that a military judge has a

duty under Article 45, UCMJ,37 to explain to the accused the

defenses that an accused raises during a providence inquiry.38

“Article 45(a) requires that, in a guilty-plea case,

inconsistencies and apparent defenses must be resolved by the

military judge or the guilty pleas must be rejected.”39     Where an

accused is misinformed as to possible defenses, a guilty plea

must be set aside.40

      When Appellee raised on the record the possibility that he

had an honest and reasonable mistake as to BA’s age, he set up

matter inconsistent with his guilty plea.41     The military judge




35
   Id.
36
   United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
37
   Article 45, UCMJ, 10 U.S.C. § 845 (2000).
38
   United States v. Smith, 44 M.J. 387, 392 (C.A.A.F. 1996).
39
   United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)
(citing United States v. Jemmings, 1 M.J. 414, 418 (C.M.A.
1976); United States v. Dunbar, 20 C.M.A. 478, 43 C.M.R. 318
(1971)).
40
   Article 45(a), UCMJ (stating that a court shall not accept a
plea of guilty where “an accused . . . sets up matter
inconsistent with the plea, or if it appears that he has entered
the plea of guilty improvidently”).
41
   Id.

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United States v. Zachary, No. 06-5001/AR


erred in accepting the guilty plea to indecent acts with a

child.

       However, the lower court correctly concluded “that

appellant’s statements during the providence inquiry adequately

support a finding of guilty to the lesser included offense of

indecent acts with another, in violation of Article 134, UCMJ.”42

Accordingly, the lower court properly affirmed a modified guilty

finding and properly reassessed the sentence.43

                                  DECISION

       The certified question is answered in the negative and the

decision of the United States Army Court of Criminal Appeals is

affirmed.




42
     61 M.J. at 825.
43
     Id. at 826.

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