United States v. Hughes , 48 M.J. 214 ( 1998 )

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of violating a lawful general regulation, rape, sodomy, burglary, and adultery, in violation of Articles 92, 120, 125, 129, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 920, 925, 929, and 934, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 8 years, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence without opinion.

This Court granted review of the following issues:

I

WHETHER THE MILITARY JUDGE ERRED BY DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR DISMISSAL OF THE SPECIFICATION OF CHARGE II AND CHARGE II (RAPE) FOR FAILURE TO STATE AN OFFENSE WHEN THE MILITARY JUDGE MISINTERPRETED THE LAW ON FRAUD IN THE FACTUM.

II

WHETHER SPECIFICATION 1 OF CHARGE I (VIOLATION OF PARAGRAPH 7, 2D INFANTRY DIVISION REGULATION 27-5, DATED 7 MARCH 1994) FAILS TO STATE AN OFFENSE VIS-A-VIS APPELLANT AND THEREFORE MUST BE DISMISSED.

We resolve Issue I against appellant and Issue II in his favor.

Factual Background

Private First Class (PFC) B had been drinking and was asleep in her barracks room at Camp Hovey, Korea. She left the door unlocked so that her boyfriend, Sergeant (SGT) R, could enter. At some time during the night, appellant entered her barracks room and had intercourse with PFC B. She was not fully awake and called out SGT R’s name several times during the intercourse. After the intercourse was completed, PFC B got out of bed, went to the bathroom, and then noticed that appellant and not SGT R was sitting on her bunk.

Both appellant and PFC B were assigned to the 2d Infantry Division (2ID). Appellant was charged with violating paragraph 7 of 2ID Regulation 27-5 “by wrongfully visiting the quarters of [PFC B] between the hours of 2400 and 0530 without the advanced written permission of any person authorized to grant said permission.” The introductory language of paragraph 7 provides that “[t]he hosting soldier is responsible for complying with the requirements and restrictions described below.” Paragraph 7b provides that, “[bjetween 2400 and 0530 hours, individuals may visit soldiers’ quarters with advance written permission.” The paragraph then specifies which commanders are empowered to grant written permission.

Issue I is miscast as pertaining to a “motion for dismissal.” It actually arose from a defense motion for a finding of not guilty. See RCM 917, Manual for Courts-Martial, United States (1995 ed.). At trial, defense counsel asserted that the prosecution had failed to produce evidence that the act of intercourse was by force and without the consent of PFC B. See para. 45c(l)(b), Part IV, Manual, swpra. Trial counsel argued that PFC B had not consented to intercourse with appellant. The military judge denied the motion.

Discussion: Issue I

The legal test for ruling on a motion for a finding of not guilty is set out in RCM 917(d), which provides in pertinent part as follows:

A motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses.

Where, as in this case, the question is whether the military judge correctly understood and applied a legal concept, we review the ruling de novo. See United States v. Sullivan, 42 MJ 360, 363 (1995); S. Childress & M. Davis, 2 Federal Standards of Review, § 7.05 (2d ed.1992).

Article 120 defines rape as “an act of sexual intercourse, by force and without consent.” Paragraph 45e(l)(b), Part IV, Manual, supra, provides that, “[i]f there is actual consent, although obtained by fraud, the act is not rape.” The distinction involved in this case is between fraud in the inducement and fraud in the factum. The former applies to situations where consent is obtained by misrepresentations (“No, I’m not married.”; “I’ll respect you in the morning.”); the latter applies to misrepresentations about the nature of the act itself. See United States v. Booker, 25 MJ 114, 116 (CMA 1987).

Before this Court appellant asserts that the military judge incorrectly applied the concept of fraud in the factum when he denied the motion for a finding of not guilty. Appellant relies on People v. Hough, 159 Misc.2d 997, 607 N.Y.S.2d 884 (Dist. Ct., Nassau County, 1994), for the proposition that sexual intercourse is not rape if the woman consents to having intercourse, even if the man fraudulently leads her to believe that he is someone else. The Government relies on this Court’s opinions in United States v. Traylor, 40 MJ 248 (CMA 1994), and United States v. Booker, supra, for the proposition that PFC B did not consent to intercourse with appellant and, thus, her purported consent was invalid because it was obtained by fraud in the factum.

In Booker, then-Judge Cox recognized that “[tjhere are differences of opinion as to whether ‘consent’ relates only to the act or also to the actor.” 25 MJ at 116. Writing the lead opinion in a plurality decision, Judge Cox opined that actual consent means that “a woman must be agreeable to the penetration of her body by a particular ‘membrum virile,’ ” i.e., a particular male sex organ. Id. at n. 2, citing Stedman’s Medical Dictionary 1049 (4th Unabridged Lawyers ed.1978 reprint). Although the two concurring judges in Booker found it unnecessary to decide whether Judge Cox’s view was correct, in Traylor his view was adopted by a 4-1 majority of this Court. 40 MJ at 249.

Appellant argues that Traylor is distinguishable from this case because, in Traylor, the victim protested as soon as she realized that the second male had penetrated her. We reject appellant’s argument. In Traylor we held that the victim’s retroactive consent or lack thereof “has no effect on the accused’s guilt” because the offense was completed at the moment of penetration. Id., citing United States v. Robertson, 33 CMR 828, 835 (AFBR 1963).

Applying the principles articulated in Traylor and Booker, we hold that there was sufficient evidence of record to show that PFC B did not consent to being penetrated by appellant. Accordingly, we hold that the military judge did not err by denying the motion for a finding of not guilty. To the extent that Hough is inconsistent with this opinion or our earlier opinions, we decline to follow it.

Discussion: Issue II

Appellant was prosecuted for violating paragraph 7 of 2ID Regulation 27-5 by visiting PFC B’s room without the required permission. Appellant now argues he was a visitor and not a host, and that 2ID Regulation 27-5 applies to the host, not the visitor. The Government argues that, in the context of the purpose of the regulation, it must be construed to apply to both hosts and visitors. In the alternative, the Government argues that appellant was guilty of aiding and abetting a violation of the regulation.

Any ambiguity in construing a punitive regulation should be resolved in appellant’s favor. See United States v. Williams, 29 MJ 112, 115 (CMA 1989) (regulations that are the basis for criminal sanctions are strictly construed.) The introductory language of paragraph 7 clearly places the responsibility for compliance on hosts. We hold that the regulation did not apply to appellant. We reject the Government’s argument that appellant was guilty as an aider and abettor. He was a burglar, not a co-actor. Accordingly, we must set aside appellant’s conviction of violating a general regulation (specification 1 of Charge I).

Notwithstanding appellant’s improper conviction of specification 1 of Charge I, we hold that he was not prejudiced in sentencing. The same conduct underlying the regulatory violation was also the basis for his conviction of burglary. This was a bench trial. The military judge treated the regulatory violation and the burglary as a single offense for sentencing. In addition to his conviction of raping PFC B, he was also convicted of burglary with intent to rape PFC B’s roommate 3 months after raping PFC B and of committing oral sodomy on PFC B 4 months later, under similar circumstances where she was expecting a visit from her boyfriend but was instead violated by appellant. Under the circumstances, we conclude that there was no reasonable likelihood of prejudice on sentencing. Art. 59(a), UCMJ, 10 USC § 859(a).

Decision

The decision of the United States Army Court of Criminal Appeals is reversed as to specification 1 of Charge I. The finding of guilty thereon is set aside, and specification 1 of Charge I is dismissed. In all other respects, the decision of the court below is affirmed.

Chief Judge COX and Judge CRAWFORD concur.