United States v. Tollinchi , 2000 CAAF LEXIS 996 ( 2000 )

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).

* 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).