United States v. Falls Down

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40268
________________________
UNITED STATES
Appellee
v.
André T. FALLS DOWN
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 3 August 2023
________________________
Military Judge: Christina M. Jimenez.
Sentence: Sentence adjudged 10 December 2021 by GCM convened at
Creech Air Force Base, Nevada . Sentence entered by military judge on
23 March 2022: Dishonorable discharge, confinement for 3 years,
forfeiture of all pay and allowances, and reduction to E -1.
For Appellant: Major Eshawn R. Rawlley, USAF; Peter Kageleiry, Jr.,
Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, RAMÍREZ, and ANNEXSTAD, Appellate Military
Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Falls Down, No. ACM 40268
RAMÍREZ, Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of sexual assault in
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920.1 The members found Appellant not guilty of a second specification of
sexual assault against the same victim in violation of Article 120, UCMJ. The
military judge sentenced Appellant to a dishonorable discharge, confinement
for three years, forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority took no action on the findings or sentence.2
Appellant raises three issues on appeal, which we reword as follows: (1)
whether Appellant’s conviction for sexual assault is legally and factually
sufficient; (2) whether the military judge abused her discretion when she found
a good faith basis for trial counsel to ask a witness, “are you aware that
[Appellant] had an allegation of sexual assault made against him?”; and (3)
whether Appellant was deprived of a constitutional right to a unanimous
verdict.
As to Appellant’s third issue, after the briefing in this case, the United
States Court of Appeals for the Armed Forces decided the case of United States
v. Anderson, which held that military accuseds do not have a right to a
unanimous verdict under the Sixth Amendment, the Fifth Amendment’s3 due
process clause, or the Fifth Amendment’s component of equal protection.
__ M.J. __, No. 22-0193, 2023 CAAF LEXIS 439, at *3–4 (C.A.A.F. 29 Jun.
2023). Therefore, Appellant is not entitled to relief for this issue. As to the
remaining issues, we find no error materially prejudicial to Appellant’s
substantial rights, and we affirm the findings and sentence.
1 All references in this opinion to the UCMJ, the Military Rules of Evidence, and the
Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States
(2019 ed.).
2 Although not raised by Appellant, we note the convening authority erred by failing
to state the reasons why he denied Appellant’s request to defer confinement. See
United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by
United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); see also R.C.M. 1103(d)(2)
(stating decisions on deferment requests are subject to judicial review for abuse of
discretion). We further note Appellant did not object to the convening authority’s
failure to state the reasons for denying the request. See R.C.M. 1104(b) (permitting
parties to file post-trial motions to address various matters, including errors in post-
trial processing). Under the circumstances of this case, we find the omission did not
materially prejudice Appellant’s substantial rights. See United States v. Scalo, 60 M.J.
435, 436 (C.A.A.F. 2005) (citations omitted).
3 U.S. CONST. amend. VI, V.
2
United States v. Falls Down, No. ACM 40268
I. BACKGROUND
Appellant and CC4 met in early 2020 while stationed at Creech Air Force
Base (AFB), Nevada (NV). They dated during the months of March and April
in 2020.
At the beginning of her relationship with Appellant, CC lived in the dorms
at Nellis AFB, and Appellant lived with a roommate in an apartment in nearby
Centennial, NV. On 15 April 2020, CC and her friend, Senior Airman (SrA)
GC, moved out of the base dorms and into a rental house in Centennial,
approximately five minutes from Appellant’s apartment.
During the time that CC and Appellant dated, they had sex on multiple
occasions. After they broke up, they remained friends and would text each
other every day or every other day. They also had consensual sex twice after
breaking up. Both of those times were situations in which CC initiated sex.
After an issue occurred between the two of them in mid-May 2020, CC told
Appellant that she no longer wanted to have sex with him. They did, however,
remain friends. CC then began a romantic relationship with SrA NW.
On the evening of 30 May 2020, CC and SrA GC hosted a “cup pong
tournament”5 at their house. Approximately 20 people showed up to the
party/tournament between 2030 and 2130 hours. CC explained that she
reached out to Appellant and invited him to the party because there had been
a recent suicide at Appellant’s squadron and Appellant “told [CC] that he
wanted some human interaction.” They exchanged several text messages about
whether Appellant should or should not go to the party, but ultimately he did.
CC did not drink alcohol that night. Appellant was drinking beer. Appellant
left the party at approximately 0140 hours. Shortly after leaving, he sent CC a
series of text messages conveying that he did not think they should talk
anymore. However, CC did not read those messages until hours later.
At some point in the night there was a confrontation between guests
including SrA NW. Then CC and SrA NW got into their own confrontation and
CC told SrA NW that he needed to leave her house and that she did not want
to speak to him again. Because she was upset, CC also left the house and went
to sit in her car. Shortly thereafter, SrA GC called CC to tell her that there has
been a shooting outside of their house. Apparently, CC’s neighbor was upset
by the noise from the party and shot his gun towards their house. CC then got
out of her car, went into the house, and ran upstairs. In the process of running
4 CC was an enlisted active-duty member of the United States Air Force.
5 According to CC, “Cup pong is a game where the cups are filled up with about an inch
and a half of water, and there’s two teams against each other on a table, and the goal
is to throw as many ping pong balls as you can into the opposite side’s cups.”
3
United States v. Falls Down, No. ACM 40268
upstairs, CC tripped and injured her ankle. The injury was significant enough
that she needed medical attention. CC and SrA GC determined that CC needed
to go the hospital. However, SrA GC did not have a license, so she could not
drive. They considered calling SrA NW, but CC had just told him that she did
not want to speak to him again. Within CC’s friend group, this left Appellant,
who lived only five minutes away, so they contacted Appellant.
Appellant drove from his apartment to CC’s house to pick her up, but he
did not take her directly to the hospital. Instead, they drove back to his
apartment to wait for SrA GC because SrA GC had remained at her house to
speak with the police about the shooting. While they were waiting for SrA GC
at Appellant’s apartment, Appellant suggested that CC soak in cold water in
his bathtub. She did so fully clothed. After speaking with the police, SrA GC
took an Uber to Appellant’s apartment. When SrA GC arrived, she and
Appellant helped CC to change out of her wet clothes and into a pair of
Appellant’s shorts and sweatshirt. Once CC was in dry clothing, Appellant
drove them to the hospital.
At the hospital, only one person was allowed to go inside with CC due to
COVID-19 protocols. SrA GC went inside with CC and Appellant stayed in his
car in the hospital parking lot. While CC was being treated, SrA GC contacted
some friends from work (other Airmen) who lived at the Nellis AFB dorms to
tell them what had happened. Those friends drove to the hospital and waited
for CC to be released.
At the hospital, CC was given a dose of hydrocodone before being x-rayed,
evaluated, and treated. The treatment included a boot-like ankle brace. By the
time CC left the hospital at approximately 0600 hours on 31 May 2020, she
was feeling the effects of the hydrocodone. She testified that she “felt nauseous,
dizzy, extremely tired, and ultimately high.” SrA GC described CC as
appearing to be “[d]isoriented, just loopy overall, [and that] she just didn’t seem
coherent.” One of the Airmen who drove to the hospital explained “you could
definitely tell [CC] was on medication. She looked kind of drowsy kind of out
of it I should say.” The Airman further explained, “personally, I don’t think she
knew where she was, like fully.” He also explained that he and the other
Airmen helped her into Appellant’s car.
The group decided that neither CC nor SrA GC should go back to their
house because of the danger of their neighbor and the shooting. SrA GC went
with their friends from the dorms to sleep there and CC went with Appellant
to sleep at his apartment. Before returning to Appellant’s apartment, he and
CC went to a fast-food restaurant to pick up breakfast. When they arrived at
Appellant’s apartment, Appellant’s roommate was there and he remained for
a few minutes. Appellant’s roommate, SrA IA, testified that CC seemed
“coherent,” seemed to be aware of her surroundings, and to his knowledge, she
4
United States v. Falls Down, No. ACM 40268
did not appear to be under the influence of drugs. He also testified that he saw
her eat breakfast at their counter. CC did not remember any interaction with
Appellant’s roommate.
According to CC, after getting to Appellant’s apartment, she ate her
breakfast in Appellant’s bedroom and fell asleep on Appellant’s bed with
Appellant also on the bed. She recalled scrolling through her phone and having
her phone in her hand. She had been awake for approximately 20 hours at that
point. The next thing she remembered was waking up, still with her phone in
her hand, and noticing throbbing and pain in her vagina. She also saw that the
side of the shorts she was wearing was rolled at her waist. Appellant was
asleep next to her. CC then sat up and either hit Appellant’s chest or face to
wake him up and yelled his name. When Appellant woke up, CC asked him
“What happened?” and Appellant responded, “We had sex.”
CC immediately began to confront Appellant about what happened and
Appellant told CC that he was spooning her, then he grabbed her breasts, “and
got horny.” Appellant also told CC “he started fingering [her and] that he put
his penis into [her] vagina.” CC asked Appellant how he got his penis inside of
her. Appellant first told her that she “was already wet.” However, CC called
him a liar and “told him he ha[d] one more chance to tell [her] the truth, and
that’s when he told [her] that he used his saliva to get it inside of [her].” CC
asked Appellant, “Was I moaning? Was I moving? Was I reciprocating? Was I
making any noise?” Appellant told her no and told her “that’s when he realized
something was wrong, and then he stopped.” CC then told Appellant to take
her to her house.
When the two arrived at CC’s house, she called SrA GC and told her that
she thought Appellant raped her. SrA GC was still at the dorms at Nellis AFB,
but told CC that she was on her way to their house. SrA GC found a ride back
to her house. During the drive, SrA GC made a video call to Appellant and
surreptitiously recorded the conversation. During the conversation, SrA GC
asked Appellant if he “put [him]self inside” of CC and he said that he did and
the “whole situation” lasted “no more than five to six minutes,” but that he was
“inside of her [for] no longer than a minute.” Appellant also admitted CC was
laying down and unconscious at the time.
Upon arriving at their house, SrA GC spoke to CC about her options
regarding what had just happened. CC made the decision to call the Clark
County Police Department and file a sexual assault report. Both CC and
Appellant were ultimately interviewed by civilian and military law
enforcement personnel and both were tested for DNA. CC completed a sexual
assault forensic examination. After the Air Force completed its investigation,
Appellant was charged with sexually assaulting CC.
5
United States v. Falls Down, No. ACM 40268
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual sufficiency of his conviction for
sexual assault and provides the court with six arguments. First, Appellant
argues that his prior sexual relationship with CC makes it “very likely that CC
consented” to the sex “even if she does not remember.” Second, Appellant
claims that the prior sexual relationship “also caused Appellant to reasonably
believe that CC was awake and consenting at the time that he penetrated her
vulva with his penis” because “[f]rom Appellant’s perspective, that morning
followed the same pattern as on previous occasions when he had consensual
sex with CC.” Third, Appellant argues that “[t]hrough her ambivalence and
deceit, CC confused Appellant and misled the members,” and as such she
should not have been believed. Fourth, Appellant claims that his admissions
on the recorded video phone call with SrA GC were not sufficient to satisfy the
burden of proof. Fifth, Appellant contends his reputation and past behavior
“strongly weigh against the notion that he would sexually assault CC while
she was asleep.” Sixth, Appellant argues the “forensic evidence does not
corroborate CC’s claims but does corroborate [his] version of events.”
1. Additional Background
After CC made her report to law enforcement, a civilian sex crimes
detective contacted and interviewed Appellant. Appellant told the detective
that he “over pushed boundaries,” but thought CC was conscious at the time
he had sex with her. Appellant explained that they had sex before but this
time, compared to the other times they had sex, it was different in that “there
wasn’t a lot of response back.” He said that was when he “felt uncomfortable
and stopped.”
That same day, CC underwent a sexual assault forensic examination,
which included a vaginal and cervical swab. During Appellant’s court-martial
a DNA expert testified that Appellant’s DNA was not found on the vaginal or
cervical swabs. However, the expert explained that one would not expect to
find an individual’s DNA when there is penile penetration into a vagina but no
ejaculation.
Also during the court-martial, a panel member asked a question concerning
the side effects of the narcotic, hydrocodone, that CC was given at the hospital
for her ankle injury. To answer the member’s question, a pharmacist from
Nellis AFB was called to testify and explained that the general side effects of
hydrocodone included dizziness, drowsiness, clouded behavior, issues with
decision making ability, mood changes, impaired ability to conduct mental and
physical tasks, problems with normal daily tasks, euphoria, and the lowering
6
United States v. Falls Down, No. ACM 40268
of inhibitions. He also testified a lack of sleep could exacerbate and compound
those side effects.
Trial defense counsel’s cross-examination of SrA GC did not touch upon the
truthfulness of the statements made during the conversation she recorded, but
instead consisted mainly of questions designed to challenge her credibility.
Examples of questions that trial defense counsel asked SrA GC included that
she recorded the conversation she had with Appellant even though she told
him she was not recording it; that SrA GC recorded the conversation so CC
could have options regarding the sexual assault; that there were two
recordings capturing their conversation even though she originally testified
there was one; that she did not tell trial defense counsel she was taking notes
while being interviewed by the defense team prior to trial; and that she wanted
to help the Prosecution. The Defense also called witnesses to testify as to
SrA GC’s character for untruthfulness.
The defense in this case was in the alternative—consent or mistake of fact
as to consent. To put this evidence in context, the military judge instructed the
panel that for lack of consent, the members were to consider all the evidence
concerning consent in determining whether the Government had met its
burden of proof. The military judge also provided the definition of “consent”
and explained to the panel that a “sleeping, unconscious, or incompetent
person cannot consent,” but that “[a]ll the surrounding circumstances are to be
considered in determining whether a person gave consent.” The military judge
also instructed the panel as to mistake of fact, and explained in order to find
that Appellant had a viable mistake of fact defense, he would have to show he
had an actual incorrect belief that CC consented to the sexual conduct and that
his mistake of fact must have been objectively reasonable.
The military judge also provided instructions regarding character evidence.
As to SrA GC, the military judge provided an instruction as to “bad character
for truthfulness.” Regarding Appellant, she provided instructions concerning
his “good character for truthfulness” and “character for respect toward[s]
women,” which she explained “may be sufficient to cause a reasonable doubt
as to [Appellant’s] guilt.” However, she explained Appellant’s “good character
for respect for women may be outweighed by other evidence tending to show
[Appellant]’s guilt.” Finally, the miliary judge instructed the members how to
properly consider any prior inconsistent statements attributable to CC and
SrA GC.
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted).
7
United States v. Falls Down, No. ACM 40268
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citation omitted). As we
resolve “questions of legal sufficiency, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States
v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. We take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399.
In order to find Appellant guilty of sexual assault, in violation of Article
120, UCMJ, as alleged in Specification 1 of the Charge, the court members
were required to find the following three elements beyond a reasonable doubt:
(1) Appellant committed a sexual act upon CC (penetrating CC’s vulva with his
penis); (2) CC was asleep; and (3) Appellant knew or reasonably should have
known that CC was asleep. See Manual for Courts-Martial, United States
(2019 ed.), pt. IV, ¶ 60.b.(2)(e).
Mistake of fact as to a victim’s consent is an affirmative defense to the
offense of sexual assault. United States v. McDonald, 78 M.J. 376, 379
(C.A.A.F. 2019). If an accused holds, based on ignorance or mistake, an
incorrect but reasonable belief relating to consent on the part of the victim, the
accused is not guilty of the offense of sexual assault. See Rule for Courts-
Martial 916(j)(1). The “mistake must have existed in the mind of the accused
and must have been reasonable under all the circumstances.” Id. There must
be some evidence of the mistake of fact for the military judge to instruct the
panel. United States v DiPaola, 67 M.J. 98, 99 (C.A.A.F. 2008).
3. Analysis
Appellant does not allege a lack of evidence for purposes of the sufficiency
of the evidence. Instead, he puts forth a combination of several arguments
attacking the credibility of CC and SrA GC as well as citing evidence that
either CC consented or that Appellant had a reasonable mistake of fact that
CC consented. As outlined below, we disagree.
Here, the evidence supports findings that on 31 May 2020, Appellant
committed a sexual act upon CC by penetrating her vulva with his penis; that
it happened while CC was asleep; and that Appellant knew or should have
8
United States v. Falls Down, No. ACM 40268
known that CC was asleep. A review of the evidence shows the following:
During the early morning hours of 31 May 2020, Appellant drove CC to the
hospital for an ankle injury. While at the hospital CC was prescribed
hydrocodone for the injury which made her feel nauseated, dizzy, and
extremely tired. CC had to be helped into Appellant’s car after being released
from the hospital. Appellant then drove CC back to his apartment, where they
both laid down on Appellant’s bed. Having been awake for approximately 20
hours, CC soon fell asleep. While CC was asleep, Appellant penetrated her
vulva with his penis. He did this by moving CC’s shorts up while she was
asleep. Then, using his saliva to lubricate CC’s vagina, he inserted himself into
her. Although CC had no memory of Appellant doing this to her because she
was asleep, when she woke up, CC felt throbbing and pain in her vagina and
saw that the side of the shorts she was wearing was rolled at her waist.
Appellant confirmed what CC was feeling by telling CC, “We had sex.” He also
told her that he used his saliva to lubricate her. Appellant also confirmed that
CC was not moaning, not moving, not reciprocating, and was not making any
noise, tending to show that any claim of mistake of fact was unreasonable. That
CC was asleep and that any mistake of fact was unreasonable was further
illustrated in a recorded video call with SrA GC, when Appellant confirmed he
penetrated CC while she was unconscious.
Having given full consideration to Appellant’s arguments and drawing
every reasonable inference from the evidence of record in favor of the
Government, we conclude the evidence was legally sufficient to support
Appellant’s conviction. Additionally, having weighed the evidence in the record
of trial, and having made allowances for the fact that the members personally
observed the witnesses and we did not, we also find the evidence factually
sufficient.
We also address each argument Appellant raises and ask ourselves if we
are convinced of Appellant’s guilt beyond a reasonable doubt.
First, Appellant makes a two-fold argument based on his prior sexual
relationship with CC. One part is that the prior relationship makes it “very
likely that [CC] consented” to the sex “even if she does not remember.” The
other part is that the prior relationship caused Appellant to “reasonably
believe that CC was awake and consenting at the time that he penetrated her
vulva with his penis” because “[f]rom Appellant’s perspective, that morning
followed the same pattern as on previous occasions when he had consensual
sex with CC.” We are not persuaded. We consider all the surrounding
circumstances. While a current or previous dating, or social, or sexual
relationship is one piece of evidence for consideration as to consent, by itself, it
does not constitute consent on a future occasion. Here, we cannot compare
Appellant’s and CC’s prior sexual relationship to this incident because this
9
United States v. Falls Down, No. ACM 40268
incident occurred after CC had taken medication, after an injury, after she had
been awake for 20 hours, and while she was asleep. As such, we do not accept
that this situation followed the same pattern as the previous sexual relations.
Additionally, there were only two times that Appellant and CC had sex after
they had broken up. In each of these instances, it was CC who had initiated
the sex, not Appellant. There is simply no evidence before us to conclude that
something similar to their past encounters occurred here. Therefore, it was not
reasonable for Appellant to believe that sex would have occurred that morning,
that CC wanted to have sex that morning, or she communicated to him that
she wanted to have sex that morning. Additionally, even if we were to accept
Appellant had a subjective belief that CC was awake or partially awake
because she moved in her sleep, this does not equate to consent or a reasonable
belief that CC consented to sexual relations. Additionally, his purported
subjective belief is unconvincing because CC asked him in the morning if she
was moaning, moving, or making any noise when he had sex with her, and
Appellant told her “no.”
Next, Appellant argues that “[t]hrough her ambivalence and deceit, CC
confused Appellant and misled the members,” and as such she should not have
been believed. According to Appellant, CC sent him mixed signals on the night
of the party because, despite having broken up with him, CC invited him to her
party. We do not see this as a credibility or believability issue. CC explained
that even though she had broken up with Appellant and had made it clear to
him that she would no longer have sex with him, she still invited him because
there had been a recent suicide at Appellant’s squadron, Appellant was not
taking it well, and he “told [CC] that he wanted some human interaction.”
Appellant continues that he “sought to end his relationship with CC that night
by texting her, ‘I don’t think we should talk anymore’ [and] ‘I don[’]t know your
take. But that’s my thought.’” However, there is no evidence in the record that
CC read these text messages before she contacted him for a ride to the hospital.
In fact, the opposite is true. CC testified that although her phone showed
Appellant sent the text messages to her at 0141 hours, she did not read them
until hours later. More to the point, from a subjective point of view, if Appellant
text messaged CC that he did not think they should be talking anymore, there
is no reason to think they would be having sex. Similarly, pointing out that CC
did not tell law enforcement some things she told the members at the court-
martial does not diminish her credibility. We accept that speaking to law
enforcement shortly after being sexually assaulted and shortly after taking
pain medication may result in not remembering every detail. We do not find
this sufficient to create a reasonable doubt.
Appellant also claims that his admissions on the recorded video phone call
with SrA GC were not sufficient to satisfy the burden of proof. As a general
proposition of law, we agree with Appellant. Mil. R. Evid. 304(c)(1) provides
10
United States v. Falls Down, No. ACM 40268
that an accused’s admission or a confession may be admitted as to guilt or
innocence only if there is independent evidence that would tend to establish
the trustworthiness of the admission or confession. The salient portions of the
recorded phone call include:
[SrA GC]: [Appellant], when you see that someone is not awake,
that means they’re unconscious, you realize that right?
[Appellant]: I know, I fe[e]l like s[**]t right now.
....
[SrA GC]: Whatever you feel like, toss that s[**]t to the f[**]king
wind, I don’t give a f[**]k what you feel like.
[Appellant]: I understand.
[SrA GC]: She was laying down and unconscious, yes or no?
[Appellant]: Yes.
[SrA GC]: And you put yourself inside of her, yes or no?
[Appellant]: Yes.
[SrA GC]: For how long?
[Appellant]: Actually inside of her, no longer than a minute.
Here, Appellant attacks the method by which SrA GC confronted Appellant
and SrA GC’s knowledge of the sexual encounter. Appellant asks this court to
look to the circumstances under which the recording was obtained in
determining what weight to give it. We have done so. Regardless of how angry
SrA GC was with Appellant, how forceful her language was, what her own
prior experiences were with sexual assault, her motivations, her lack of first-
hand knowledge of what led to Appellant having sex with CC, we find that
none of those things diminish Appellant’s admission. SrA GC was not law
enforcement, he was not in custody, and SrA GC did not outrank him. He
admitted that he had sex with CC while she was unconscious. CC corroborated
both of those things based on the pain in her vagina when she woke up and the
fact that she was asleep the whole time. This corroboration is independent of
Appellant’s statements to CC that they had sex; independent of Appellant’s
statements to law enforcement that he “over pushed boundaries;” and
independent of Appellant’s statements to CC that she was not moaning,
moving, reciprocating, or making any noise. While Appellant’s statements to
SrA GC alone may not have been sufficient to warrant a conviction, we find
that when coupled with the other evidence in the case, we are convinced of
Appellant’s guilt beyond a reasonable doubt.
11
United States v. Falls Down, No. ACM 40268
Next, Appellant contends that his reputation and past behavior “strongly
weigh against the notion that he would sexually assault CC while she was
asleep.” He points to CC’s testimony where she agreed that sexual assault was
“out of character” for Appellant. Again, as a matter of general legal principles,
we agree that evidence of an accused’s character for respect towards women
may be sufficient to cause a reasonable doubt as to his guilt. While Appellant’s
reputation and character for respect towards women lend to the idea that he
may not be someone who “would” sexually assault a woman and that sexual
assault was “out of character” for him, the evidence in this case, as outlined
above, contradicts this notion. As the military judge instructed, “evidence of
[an] accused’s good character for respect for women may be outweighed by
other evidence tending to show the accused’s guilt.” We find that the character
evidence was outweighed by the evidence of guilt, as outlined above.
Appellant’s reputation and character for respect towards women do not move
the needle, in our opinion, when he confessed to “push[ing] boundaries,” and to
having sex with CC while she was unconscious.
Finally, Appellant argues that the “forensic evidence does not corroborate
CC’s claims but does corroborate [his] version of events.” He points to the
forensic evidence that revealed no sign of injury or irritation to CC’s vagina,
and suggests that Appellant did not ejaculate inside CC. Even agreeing with
Appellant’s assertions, this evidence does not materially influence our analysis
as to whether Appellant penetrated CC’s vulva with his penis without her
consent, and specifically, while she was asleep. This evidence would tend to
show the level of physical force Appellant used in completing the sexual assault
and that he did not ejaculate inside of CC, but does not disprove a sexual
assault occurred.
We have made allowances for not having personally observed the
witnesses, we have weighed the evidence in the record of trial, we have
considered the inconsistencies as pointed out by Appellant, and we are
convinced of Appellant’s guilt beyond a reasonable doubt. Accordingly, we find
his conviction factually sufficient.
B. Good Faith Basis to Ask Questions
Appellant claims that the military judge abused her discretion in allowing
trial counsel to cross-examine a defense witness by asking, “[A]re you aware
that [Appellant] had an allegation of sexual assault made against him at
tech[nical] school?” Appellant attacks the military judge’s ruling first by
claiming that the source of the information was Appellant telling CC, and that
CC is a biased witness; that CC never made the statement under oath; that
the military judge failed to make “clear” findings of fact; and that Air Force
Office of Special Investigations (AFOSI) Special Agent (SA) JM’s testimony
directly contradicted CC’s claim that Appellant had told her he had been
12
United States v. Falls Down, No. ACM 40268
interviewed by AFOSI in connection with a sexual assault allegation against
him.
1. Additional Background
During the discovery phase of this case, trial counsel provided notice to trial
defense counsel of statements Appellant made relevant to the case. Trial
defense counsel then filed various motions concerning certain statements
attributable to Appellant. One of the defense motions contains the statements
in issue as follows:
[ ] On 31 May 2021, [CC] participated in an interview with Las
Vegas Metropolitan Police detective [LG], where she states:
“[Appellant] literally was sitting there talking about how he had
already had a sexual assault case on his records and he just like,
never told me. And apparently some girl he was having sex with
got jealous – this is just what he told me – got jealous that he
was having sex with a different girl. So then she tried to say that
he raped her.”
[ ] On 15 June 2021, [CC] participated in an interview with
[AF]OSI. At approximately 20:57 minutes, [CC] states:
“He said he got charged with a [Sexual Assault Response
Coordinator (SARC)] case in tech school . . . He said that some
girl claimed that he raped her because she was jealous that he
had sex with another girl. He said he won the case, but after
talking with other people, they said she could have just refused
to participate.”
[ ] At approximately 41:24 minutes, [CC] states:
“As far as his ex, her name is [J] . . . As far as the SARC case
goes, when we first started dating, I had no idea about it. He just
said it right in front of me and [SrA GC] . . . I believe [Appellant]
said he had to speak to an [AF]OSI investigator, so I believe it
went to that point. That means the girl’s name should be on file
and she can be contacted.”
At trial, the Defense called SrA IA to testify. SrA IA was a close friend of
Appellant and his roommate at the time of the sexual assault. He was an
individual who testified that CC was coherent the morning of the sexual
assault. SrA IA also provided his opinions that Appellant had a character trait
of truthfulness and a character trait of respectfulness towards women.
Prior to cross-examination, trial counsel asked for a hearing outside the
presence of the court members. During the hearing trial counsel put the
13
United States v. Falls Down, No. ACM 40268
military judge on notice that the Government sought to test SrA IA’s opinion
that Appellant had a character trait of respectfulness towards women. To do
this, trial counsel sought to ask a question similar to: “Did you know that
[Appellant] had a prior allegation of sexual assault while he was in tech[nical]
school?” According to trial counsel, it would “not be offered for any propensity
purpose, but simply [for] the limited purpose of exploring the credibility of the
witness’s opinion . . . on that particular matter.” The Defense objected, alleging
that the Government lacked good faith to ask the question.
After allowing both sides to argue their points, the military judge ruled as
follows:
[N]o one will be bootstrapping anything that doesn’t meet the
rule. This is not being considered under [Mil. R. Evid.] 413
whatsoever. This is only to test the witness’s veracity. It is not
evidence, and it cannot be used as evidence of any such finding.
To be honest, the court is not quite sure what the words, “SARC
case” mean[ ]. It’s not a vernacular, although the words mean
something, I don’t know what they mean together, and I have no
idea what [Appellant] meant at that particular point in time that
he might have made that statement. However, that is beside the
point, there is a good faith basis before the [G]overnment to
challenge this witness’ knowledge about an issue the [D]efense
put in, and that is respect towards women. If anything, the court
does understand what a SARC issue is, and that seems to go
directly in the face of respect.
The court has considered [Mil. R. Evid.] 403, and yes, the court
does agree, it is prejudicial, but it is not unduly so. The objection
is overruled. The probative value is not outweighed by the
danger of unfair prejudice, or confusion of the issues.
Counsel, to be clear, you are only using that test of veracity, you
have no such evidence, and no such evidence before this court. It
will not be argued as such to any member at any point in time
until such evidence is admitted, is that clear?
....
I just wanted to clarify one point in my ruling. So, the basis of
the [G]overnment’s knowledge that the court has before it, is
statements by [Appellant] to [CC] regarding his having a SARC
case opened against him during tech[nical] school at Randolph
Air Force Base. The court understands SARC to be a Sexual
Assault Response Coordinator, and that SARC is involved in
sexual assault allegations or anything under the offense of
14
United States v. Falls Down, No. ACM 40268
Article 120. Whether or not a SARC case open[ed] means that
there would in-fact be documentation, the court is unaware of
that knowledge and therefore that is the consideration saying
that that is a good faith basis and why the objection was
overruled.
As it relates to this issue, trial counsel asked SrA AI, “[Y]ou also testified
on direct examination that you’ve known [Appellant] for a while and that he
has a character for respectfulness towards women, is that correct?” SrA AI
answered, “Yes, sir.” Trial counsel next asked, “[A]re you aware that
[Appellant] had an allegation of sexual assault made against him at tech[nical]
school?” SrA AI responded, “No sir, I did not know that.” Immediately after
SrA AI’s response, the military judge provided the court members the following
instruction:
Members, I’m just going to give you one instruction. The witness
was just asked whether he was aware or had heard of some
matter. That is a permissible question to test the witness’s
credibility, but if there is no evidence of that matter you may not
consider the question for any other purpose.
The Defense then called SA JM. Trial defense counsel asked if he found any
“evidence” to “support that a sexual assault allegation was ever made against
[Appellant] during tech[nical] school.” SA JM testified that he did not. On
cross-examination SA JM admitted that they also could not track down any of
Appellant’s former girlfriends even though they had attempted to do so.
2. Law
We review “a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013)
(citation omitted). “The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion. The challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Id. (citation
omitted). “The standard requires that the military judge be clearly wrong in
his determination of the facts or that his decision be influenced by an erroneous
view of the law.” United States v. Dooley, 61 M.J. 258, 262 (C.A.A.F. 2005)
(footnote omitted). “When testing for an abuse of discretion, this Court does
not substitute its judgment for the military judge’s.” United States v. Grant, 38
M.J. 684, 688 (A.F.C.M.R. 1993).
“When evidence of a person’s character or character trait is admissible, it
may be proved by testimony about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of the character witness, the
military judge may allow an inquiry into relevant specific instances of the
person’s conduct.” Mil. R. Evid. 405(a).
15
United States v. Falls Down, No. ACM 40268
“Counsel may test a witness’s opinion regarding the character of another
person by asking ‘have you heard’ or ‘are you aware’ type questions which refer
to specific instances of conduct—as long as there is a good faith basis for asking
the question, and the question is otherwise permissible under the rules of
evidence.” United States v. Witt, No. ACM 36785 (reh), 2021 CCA LEXIS 625,
at *91 (A.F. Ct. Crim. App. 19 Nov. 2021) (unpub. op.) (citing United States v.
Saul, 26 M.J. 568, 572 (A.F.C.M.R. 1988)), aff’d, __ M.J. __, No. 22-0090, 2023
CAAF LEXIS 379 (C.A.A.F. 5 Jun. 2023). “The specific instances themselves
are not offered to prove they did or did not occur, but rather to evaluate the
proffered opinion.” Id. (citing United States v. Beno, 324 F.2d 582, 588 (2d Cir.
1963) (additional citation omitted). The purpose of such questioning “is to raise
questions as to whether the witness has a sufficient basis to know an accused’s
reputation in the community or to raise questions about the witness’[s]
standard of evaluating good character.” United States v. Pruitt, 46 M.J. 148,
151 (C.A.A.F. 1997).
When a witness’s opinion is tested, the military judge must test for
prejudice under Mil. R. Evid. 403. United States v. Pearce, 27 M.J. 121, 125
(C.M.A. 1988). “Admittedly, the potential for undue prejudice can increase as
the impeaching offense more closely approximates the charged offense.” Id.“However, that [is] a risk undertaken by the defense in electing to present
affirmative character evidence.” Id. Military judges are afforded broad
discretion in applying Mil. R. Evid. 403, but we give less deference to military
judges “if they fail to articulate their balancing analysis on the record.” United
States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (citation omitted).
3. Analysis
We find the military judge did not abuse her discretion in permitting trial
counsel to test the foundation of SrA AI’s opinion that Appellant had a
character of respectfulness towards women. Our analysis is in three parts.
First, the nature of the question, testing a witness’s opinion on character,
directly related to part of Appellant’s defense at trial and on appeal is that he
is not the kind of person that would commit sexual assault because he is
respectful of women. SrA AI testified that Appellant had a character trait of
respectfulness towards women and had known him since technical school, but
knew him better at their duty station and from being roommates. This left the
impression that Appellant’s character for respectfulness towards women dated
back to the entire time that SrA AI knew Appellant. The fact SrA AI was not
aware of a possible allegation tends to undermine the basis for his opinion
about Appellant’s character. Therefore, SrA AI’s opinion was entitled to less
weight.
16
United States v. Falls Down, No. ACM 40268
Second, we find that trial counsel had a good faith basis for asking the
question. The question was based on the statements that CC made to law
enforcement regarding what Appellant reportedly told CC. These statements
included that while he was in technical school a woman became jealous and
made some sort of sexual assault allegation against him because he had sex
with someone else. The law simply required trial counsel to have a good faith
basis for asking the question. Here, Appellant knew from the discovery phase
of the case onward that this evidence was out there. In fact, he filed a motion
to preclude CC from testifying about it during the Government’s case in chief.
We recognize Appellant’s position is that CC was a spurious witness from the
beginning. However, our independent review of the evidence leads us to a
different conclusion. The Defense opened the proverbial door. This was simply
a risk undertaken by the Defense in electing to present affirmative character
evidence. Pearce, 27 M.J. at 125.
Third, we address the military judge’s analysis under Mil. R. Evid. 403. We
start with the military judge’s ruling. She stated she had “considered [Mil. R.
Evid.] 403, and yes, the court does agree, it is prejudicial, but it is not unduly
so. The objection is overruled. The probative value is not outweighed by the
danger of unfair prejudice, or confusion of the issues.” However, she did not
articulate how she arrived at her conclusion. As a result of her failure to fully
articulate her analysis, we grant the military judge’s Mil. R. Evid. 403 ruling
less deference than we otherwise would have given it.
Mil. R. Evid. 403 explains that evidence may be excluded if its probative
value is substantially outweighed by a danger of unfair prejudice. Here,
Appellant was alleged to have sexually assaulted CC and there is no question
that asking about a previous allegation of sexual assault was prejudicial. Both
trial counsel and the military judge said as much.
On the one hand, we consider that the probative value of the question, in
and of itself, was not very high, considering SrA AI had no knowledge of the
allegation. The members were not permitted to consider the truth of the
allegation. We also consider that trial counsel did not follow up to test whether
SrA AI’s opinion would change knowing that information. Finally, we consider
that the facts presented in the question were not corroborated.
On the other hand, regarding the danger of unfair prejudice, we consider
that the question did not trigger any members asking questions, even though
they asked other questions throughout the court-martial; that it was the
Defense that opened the door knowing that the evidence existed; and that the
attributes SrA AI testified about and his familiarity with Appellant since
technical school directly relate to the question asked. After trying to portray
himself as someone who would not commit sexual assault based on his
character for respectfulness towards women, Appellant cannot claim surprise
17
United States v. Falls Down, No. ACM 40268
that the Government sought to test the basis for that characterization. See
Michelson v. United States, 335 U.S. 469, 485 (1948) (noting that defendants
“have no valid complaint at the latitude which existing law allows to the
prosecution to meet by cross-examination an issue voluntarily tendered by the
defense” (citation omitted)).
We do not find the military judge abused her discretion in allowing trial
counsel to test SrA AI’s opinion by asking about the prior sexual assault
allegation. We conclude the relevance of testing the basis for SrA AI’s opinion
was not substantially outweighed by the danger of unfair prejudice. Trial
counsel was not required to let SrA AI’s testimony go unanswered or its basis
untested in front of the members. Therefore, the question was relevant. While
the question was clearly prejudicial, we do not characterize it as unfairly
prejudicial in light of the fact it was the Defense which offered the witness and
the witness’s opinion in the first place. We further note that trial counsel only
asked the one question and SrA AI claimed no knowledge of the allegation. The
question lacked any specific details and only asked if SrA AI knew Appellant
had been accused. Again, the military judge instructed the members as to how
to properly view this question and answer. Absent evidence to the contrary, we
will presume court members follow the instructions they are given by the
military judge. United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012).
Therefore, we conclude Mil. R. Evid. 403 would not operate to prohibit the
question posed by trial counsel.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. See
Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
18