

  
  
  
  U.S. v. Tollinchi


IN THE CASE OF
UNITED STATES, Appellee

v.

Pedro A. TOLLINCHI, Sergeant

U.S. Marine Corps, Appellant

 

No. 99-0965

Crim. App. No. 98-0246

 

United States Court of Appeals for the
Armed
Forces

Argued April 5, 2000

Decided September 11, 2000

GIERKE, J., delivered the opinion of the
Court, in which

EFFRON, J., and COX, S.J., joined.
SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.

CRAWFORD, C.J., filed a dissenting opinion.

Counsel

For Appellant: Lieutenant Michael A.
Castelli,
JAGC, USN (argued); Lieutenant Commander Linda J. Lofton, JAGC,
USN (on brief).

For Appellee: Lieutenant James E. Grimes,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).

Military Judge: R. G. Sokoloski

 

 



This opinion is
subject
to editorial correction before publication.




Judge GIERKE delivered the opinion of the
Court.

A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of
attempted
sodomy, violating a general order (2 specifications), rape, sodomy,
indecent
assault (2 specifications), and adultery, in violation of Articles 80,
92, 120, 125, and 134, Uniform Code of Military Justice, 10 USC
§§
880, 892, 920, 925, and 934, respectively. The approved sentence
provides
for a dishonorable discharge, confinement for 5 years, total
forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal
Appeals
affirmed the findings and sentence. 50 MJ 874 (1999).

Our Court granted review to determine
whether
the evidence of rape was legally sufficient.1
For the reasons set out below, we reverse in part and remand.


Factual Background

Appellant, a Marine Corps recruiter,
persuaded
NF, a high school student, to enlist in the Marine Corps. After NF
successfully
completed the qualification testing required for enlistment, appellant
told him that he had done well and that the two should meet to discuss
the test later that day. NF and his then girlfriend, 17-year-old EH,
both
went to appellant's office. Appellant drove the couple back to NF's
house
so that his parents could sign parental consent forms allowing NF to
join
the Marine Corps.

After 30 to 45 minutes at NF's house,
appellant
drove EH and NF back to the recruiting office. NF thought they were
returning
to fill out more paper work. EH thought they were all going out for
dinner.

At the recruiting office, appellant
produced
a bottle of liquor and suggested that the three of them have a drink to
celebrate NF's enlistment and high test score. Appellant continued to
"toast"
NF and persuaded NF and EH to take several more drinks, until both were
intoxicated. Appellant then told EH that she should kiss NF to
celebrate.
She gave NF a "tap kiss," but appellant encouraged her to "give him a
real
kiss." They kissed each other more passionately. Appellant then
encouraged
them to "[g]o ahead, just get into it."

Appellant told NF and EH to take off their
shirts, and they complied. They continued to kiss. At appellant's
request,
NF removed her bra. Then appellant asked them to take off their pants
and
they did. Appellant moved closer to the couple and touched EH’s breasts
and vaginal area.

NF testified that he and EH lay down on the
floor, and that he performed oral sex upon EH. NF testified that EH
then
pulled him up beside her because appellant had tried to place his penis
in her mouth. Appellant moved around NF and knelt between EH’s legs. NF
testified that EH gasped and said, "Stop him, he’s inside of me." NF
told
EH not to worry and that it would be over soon. In order to dissuade
appellant,
NF then pushed appellant away, placed himself between EH’s legs and
feigned
intercourse with her. Appellant then masturbated and ejaculated on EH's
breasts and partly on NF's back. EH became hysterical, got up, and went
to the bathroom. Appellant dressed, gave NF $20 for taxi fare, and left
the office.

EH testified that after she and NF lay
down,
appellant performed oral sex on her. She testified that NF was lying
beside
her, and she could see appellant. She testified that appellant
performed
oral sex for a while, and then he propped himself over EH and
penetrated
her with his penis. EH testified that she whispered to NF, "He’s inside
of me." According to EH, appellant then withdrew from her, asked NF if
he ever had performed oral sex on her, and told NF that he should do
so.
NF then performed oral sex on EH. Appellant then straddled EH’s chest
and
attempted to stick his penis in her mouth. EH testified that she pushed
appellant away because she did not want that to happen.

EH testified that she was drunk and afraid,
but that she did not tell appellant he could have intercourse with her.
On cross-examination, she testified that she did not tell appellant
"no"
when he penetrated her.

Appellant testified in his defense and
denied
that the incident happened.


Discussion

Appellant asserts that the evidence is
legally
insufficient because the Government failed to produce evidence that the
intercourse was without EH’s consent. In a supplemental pleading filed
in response to questions from the bench at oral argument, appellant
suggests
the possibility that this Court affirm a lesser-included offense of
indecent
acts by engaging in sexual intercourse with EH in the presence of her
boyfriend.
Appellant invites this Court to consider his case in light of United
States v. Izquierdo, 51 MJ 421 (1999).

The Government argues that EH was unaware
that
appellant was about to rape her and therefore had no reason to manifest
her lack of consent. See United States v. Traylor, 40
MJ
248, 249 (CMA 1994) (rape complete upon penetration; failure to resist
immaterial where victim was unaware that penetration by accused was
going
to occur).

Legal sufficiency is a question of law that
we review de novo. 2 Steven A. Childress & Martha S. Davis,
Federal
Standards of Review § 9.01 at 9-2 (3d ed. 1999). The legal
test
is "whether, after reviewing the evidence in the light most favorable
to
the prosecution, any rational trier of fact could have found
the
essential elements [of the offense of rape] beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States
v. Turner, 25 MJ 324 (CMA 1987).

Article 120 defines rape as "sexual
intercourse,
by force and without consent." Paragraph 45c(1)(b), Part IV, Manual for
Courts-Martial, United States (1995 ed.),2
reads as follows:




If a victim in possession of his or her
mental
faculties fails to make lack of consent reasonably manifest by taking
such
measures of resistance as are called for by the circumstances, the
inference
may be drawn that the victim did consent. Consent, however, may not be
inferred if resistance would have been futile, where resistance is
overcome
by threats of death or great bodily harm, or where the victim is unable
to resist because of the lack of mental or physical faculties.



See also United States v.
Bonano-Torres,
31 MJ 175, 179 (CMA 1990) ("[W]here there is no constructive force and
the alleged victim is fully capable of resisting or manifesting her
non-consent,
more than the incidental force involved in penetration is required for
conviction.").
The Court of Criminal Appeals considered
the
evidence of EH’s intoxication, took note of her ability to remember
appellant’s
conduct "with ringing clarity," and concluded that EH was capable of
resisting
or manifesting her non-consent. See 50 MJ at 876 (noting EH’s
ability
to remember the events, confide in a friend, and eventually contact the
police, "notwithstanding [her] intoxication"). The court also found the
room was dark, and EH was underneath NF, making EH "unaware of any
attempt
to penetrate her until it had already occurred." Id. We will
not
overturn findings of fact by a Court of Criminal Appeals unless they
are
clearly erroneous or unsupported by the record. United States v.
Avery,
40 MJ 325, 328 (CMA 1994).

The conclusion that EH was capable of
manifesting
her lack of consent is amply supported by the record. In addition to
the
"ringing clarity" of her memory, she manifested her ability to
demonstrate
lack of consent by pushing appellant away when he attempted to place
his
penis in her mouth.

However, the finding that EH was unaware of
any attempt to penetrate her until penetration had already occurred is
unsupported by the record. Although the room may have been darkened,
there
was sufficient light for EH and NF to see what was happening and to
describe
it in detail. EH testified that NF was lying beside her, not on top of
her. She also testified that she could see appellant while he was
performing
oral sex on her and when he moved himself into position to penetrate
her.
There is no evidence to the contrary.

The evidence of record allows only one
reasonable
conclusion: that EH saw what appellant was doing and about to do, and
that
she did nothing to express her lack of consent to sexual intercourse.
She
whispered to NF, but said nothing to appellant. Accordingly, we find United
States v. Traylor, supra, inapposite.

Applying the legal principles above to the
facts, we hold that the evidence of rape is legally insufficient.
Although
EH was intoxicated, she was able to recall the events with "ringing
clarity."
She was able to manifest lack of consent and did so when appellant
attempted
to place his penis in her mouth. She undressed herself in front of
appellant,
allowed him to touch her breasts and vaginal area, allowed him to
perform
oral sex on her, and said nothing when she saw him move into position
for
sexual intercourse. She whispered to NF, but said nothing to appellant
and did nothing to suggest to appellant that she did not consent to
sexual
intercourse. Even if she did not actually consent, there was no way for
appellant to know that she did not consent. See RCM 916(j),
Manual,
supra
(ignorance or mistake of fact); United States v. Watt, 50 MJ
102,
105 (1999) (honest and reasonable mistake of fact as to consent is
defense
to rape).

However, our holding regarding the
insufficiency
of the evidence of rape does not end the analysis. The evidence
overwhelmingly
establishes that appellant had sexual intercourse with EH in the
presence
of her boyfriend, NF. Sexual intercourse under those circumstances is
an
indecent act, a lesser-included offense of rape. See Izquierdo,
51 MJ at 422-23, quoting United States v. Berry, 6 USCMA 609,
614,
20 CMR 325, 330 (1956) (Sexual intercourse is "open and notorious,"
"flagrant,"
and "discrediting" when participants know a third person is present.).


Decision

The decision of the United States
Navy-Marine
Corps Court of Criminal Appeals with respect to the findings of guilty
of Charge I and its specification (attempted sodomy), Charge II and its
specifications (violations of a general order), Charge IV and its
specification
(sodomy), and Charge V and its specifications (indecent assault and
adultery)
is affirmed. Only so much of the decision with respect to Charge III
and
its specification (rape) is affirmed as finds the evidence legally and
factually sufficient to support a finding of guilty of the
lesser-included
offense of indecent acts, in violation of Article 134. The sentence is
set aside. A rehearing on sentence is authorized.

FOOTNOTES:

1 The
granted
issue is:


WHETHER THE
EVIDENCE
PRESENTED BY THE GOVERNMENT WAS LEGALLY INSUFFICIENT TO ESTABLISH THAT
APPELLANT WAS GUILTY OF RAPING EH BECAUSE THE GOVERNMENT FAILED
TO ESTABLISH A REQUIRED ELEMENT OF RAPE.

2
This provision is unchanged in the current version of the Manual.


SULLIVAN, Judge (concurring in part and
dissenting
in part):

I agree with the majority that United
States
v. Traylor, 40 MJ 248 (CMA 1994) (holding that victim was unaware
of
penetration and, thus, could not consent), is not applicable in this
case.
*
Nevertheless, in light of the lower court’s erroneous reliance on United
States v. Traylor,
supra, in its legal sufficiency analysis,
I think the better course of action for this Court would be to remand
this
case to the Court of Criminal Appeals to address the legal and factual
sufficiency of the evidence in this case as to whether the victim did
not
consent to the intercourse.
See generally United States
v. Webster, 40 MJ 384, 386 (CMA 1994) (holding that proof of lack
of
consent does not require some positive action or response by victim). I
am reluctant to overturn the jury’s finding of rape in this case
without
a proper legal and factual sufficiency analysis by the court below——a
court
with special factfinding powers. See Article 66(c), Uniform
Code
of Military Justice, 10 USC § 866(c).

FOOTNOTE:

* I
disagree
with my dissenting colleague that the only reasonable conclusion to be
drawn from the evidence was that the victim was intoxicated and, thus,
could not consent. Cf. United States v. Booker, 25 MJ
114,
117 (CMA 1987) (holding that evidence supported members’ conclusion
that
victim was too drunk to consent).



CRAWFORD, Chief Judge (dissenting):

The findings of fact of the Court of
Criminal
Appeals concerning the evidence of EH’s intoxication are clearly
erroneous
and unsupported by the record. Because there is ample evidence of
record
upon which the trier of fact could conclude that EH was intoxicated
and,
therefore, unable to give consent, I would not reach the question
whether
EH was aware or unaware of penetration.

The factual question of the level of EH’s
intoxication
was presented to the members at various points during the trial: trial
counsel’s argument, cross-examination, and the military judge’s
instructions.

The evidence introduced at trial revealed
that
appellant purchased a bottle of Dewars whiskey just before and in
anticipation
of sexual activities, and gave 17-year-old EH and her 16-year-old
boyfriend
water cooler cups full of whiskey to drink, before any of the acts
occurred.
EH testified that she was feeling the effects of the alcohol, and her
boyfriend
testified that she was acting silly. In fact, EH said she was so drunk
she could not see herself when she looked in her hand-held mirror. The
military judge instructed the members that:




When a victim is incapable of consenting
because she is intoxicated to the extent that she lacks the mental
capacity
to consent, no greater force is required than that necessary to achieve
penetration.



Additionally he instructed that:



In deciding whether [EH] had consented to
the sexual intercourse you should consider all the evidence in this
case,
including, but not limited to [EH’s] age, her experience with alcohol,
the degree of Miss [H’s] intoxication, if any, her mental alertness,
the
ability of Miss [H] to walk, to communicate coherently, and other
circumstances
surrounding the sexual intercourse.
If Miss [H] was incapable of giving
consent,
and if the accused knew or had reasonable cause to know that Miss [H]
was
incapable of giving consent because she was intoxicated, the act of
sexual
intercourse was done by force and without consent.




Based upon all of the evidence, the members
found
appellant guilty of rape.
It is clear that appellant gave
intoxicating
liquor to 17-year-old EH and her 16-year-old boyfriend with the intent
of dulling their senses so that he could engage in various sexual acts
with EH, including entering her sexually without her opposition.

Since appellant, as the provider of alcohol
to these minors, had good reason to believe EH was too intoxicated to
consent
to sexual intercourse with him, and since the testimony of EH and her
boyfriend
evidenced that she was in fact intoxicated, I would hold that the
evidence
is legally sufficient to sustain appellant’s conviction for rape.

I cannot support the notion that the
ability
of EH and her boyfriend to recall the events of the night in question
in
"ringing clarity" has any special relevance to the question of EH’s
intoxication.
This is particularly the case where, as here, no evidence was presented
at trial concerning the effect of intoxication on memory and no
evidence
was presented which contradicted the clear evidence of EH’s
intoxication.

I think it will be a sad day for all
victims
of sexual crimes if their ability to recall the criminal acts
perpetrated
upon them is used against them in this fashion.



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