UNITED STATES, Appellee 

v. 

Manasses A. PAIGE, Lance Corporal 

U.S. Marine Corps, Appellant 

No. 08-0805 

Crim. App. No. 200600587 

United States Court of Appeals for the Armed Forces 

Argued March 17, 2009 

Decided July 1, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a 

separate opinion dissenting in part and concurring in the 

result, in which RYAN, J., joined in Part II. 

Counsel 

For Appellant: Captain Kyle R. Kilian, USMC (argued). 

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN 

(argued); Lieutenant Timothy H. Delgado, JAGC, USN (on brief); 

Brian K. Keller, Esq. 

Military Judge: Daniel J. Daugherty 

This opinion is subject to revision before final publication. 
United States v. Paige, No. 08-0805/MC 

2

Judge ERDMANN delivered the opinion of the court. 

Lance Corporal Manasses A. Paige entered a not guilty plea 

to the offense of rape. A general court-martial with members 

found him guilty.1 At trial, the Government’s theory was that 

the victim was incapable of consent as a result of alcohol 

intoxication. Both parties presented witnesses to describe the 

victim’s condition on the night of the incident. During closing 

argument, trial counsel argued that evidence of the victim’s 

condition at the time of the rape and immediately following the 

rape was uncontradicted. Arguably, Paige himself was the only 

person who might have had information to contradict the 

Government’s evidence on the victim’s condition during the 

relevant time period, and Paige did not testify. Trial counsel 

also argued that to establish a mistake of fact defense as to 

consent, Paige would have to “assert that his mistake was 

honest.” 

 “Members of the armed forces, like their civilian 

counterparts, may not be compelled to incriminate themselves in 

a criminal case.” United States v. Carter, 61 M.J. 30, 33 

(C.A.A.F. 2005) (citing U.S. Const. amend. V; Article 31(a), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831(a) 

(2000)). A military accused has the right not to testify, and 

 

1

 Paige was also convicted, consistent with his pleas, of 

dereliction of duty, disrespecting a noncommissioned officer, 
United States v. Paige, No. 08-0805/MC 

3

“trial counsel may not comment directly, indirectly, or by 

innuendo, on the fact that an accused did not testify in his 

defense.” United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 

1990) (citing Griffin v. California, 380 U.S. 609, 615 (1965)). 

We granted review to consider whether trial counsel’s remarks 

amounted to an improper comment on the fact that Paige exercised 

his Fifth Amendment right to not testify in his defense. 

We conclude there was no plain error in trial counsel’s 

references to uncontradicted evidence during closing argument. 

We further conclude that while trial counsel committed plain and 

obvious error in arguing that to establish a mistake of fact 

defense as to consent, Paige has to “assert that his mistake was 

honest,” this error was harmless beyond a reasonable doubt. 

Therefore we affirm the decision of the United States NavyMarine Corps Court of Criminal Appeals. United States v. Paige, 

No. NMCCA 200600587, 2008 CCA LEXIS 223, 2008 WL 2620094 (N-M. 

Ct. Crim. App. July 1, 2008) (unpublished).2

 

 

misusing e-mail, assault, and breaking restriction. This appeal 

only involves the rape conviction. 

2

 On appeal before the Court of Criminal Appeals, Paige raised 

ten assignments of error. See Paige, 2008 CCA LEXIS 223, at *2, 

2008 WL 2620094, at *1. The lower court ordered a hearing 

pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 

(1967), to address Paige’s allegations of ineffective assistance 

of counsel. Id. The lower court ultimately found 

that all Paige’s claims, including the ineffective assistance of 
United States v. Paige, No. 08-0805/MC 

4

BACKGROUND 

At trial, Paige stipulated to the fact that he had 

intercourse with a female private, Private First Class (Pfc) C. 

The incident occurred in Pfc C’s room at the barracks after 

several hours of drinking. Paige also stipulated to the fact 

that one hour after the incident Pfc C’s blood alcohol level was 

292 mg/DL. Relying on testimony of witnesses who described Pfc 

C’s condition before, during, and after the incident, as well as 

the testimony of a substance abuse expert, the Government’s 

theory was that Pfc C was too intoxicated to be capable of 

consent. The defense, also relying on the testimony from 

witnesses and substance abuse experts, raised the possibility 

that Pfc C cycled through different states of consciousness. 

Paige’s defense was that the Government failed to prove lack of 

consent. The defense also maintained that the defense of 

mistake of fact as to consent applied. 

1. Trial Testimony Regarding Pfc C’s Condition 

During the trial, the Government called Pfc C as a witness. 

She testified that the last thing she remembered before waking 

up in the hospital was playing a drinking game with Paige. Pfc 

C said that she did not remember having sex with Paige and 

denied that she consented to sex. 

 

counsel claim, lacked merit. Id. at *17-*18, 2008 WL 2620094, 

at *6. The lower court summarily disposed of the issue now 

before us. Id. 
United States v. Paige, No. 08-0805/MC 

5

A number of individuals who observed and interacted with 

Pfc C before and after the rape testified about her condition 

and appearance. The Government’s witnesses included: Lance 

Corporal Richardson, one of Pfc C’s roommates; Lance Corporal 

Hobbs and Lance Corporal Creaser, two Marines who lived in the 

barracks; two corpsmen who responded to the scene; and a 

military policeman who responded to the scene. The defense 

witnesses who described Pfc C’s condition included Lance 

Corporal Coon, Pfc C’s other roommate, and the emergency room 

doctor who treated Pfc C.3

 

Lance Corporal Coon described what happened in the hours 

before the intercourse. Coon testified that she and Pfc C were 

in their barracks room with Paige for about two to three hours. 

Initially they were just talking and playing video games. At 

some point Paige went out and came back with alcohol. Pfc C and 

Paige started playing a drinking game. After Pfc C consumed one 

beer and an unspecified amount of liquor, the three of them went 

to the barracks’ smoke pit for about fifteen minutes. 

Coon testified that when they were at the smoke pit Pfc C 

was hugging everybody, talking to a lot of different people, 

laughing, and giggling. She testified that Pfc C stumbled from 

 

3

 Other witnesses testified on matters not related to personal 

observations of Pfc C’s condition that night, such as the 

investigating officer who took Richardson’s statement; a witness 

on Richardson’s character for truthfulness; and a servicemember 
United States v. Paige, No. 08-0805/MC 

6

person to person and needed help to stand. When they left, Coon 

and Paige helped Pfc C into the building, “dragging [her] up the 

steps.” Coon indicated that Pfc C’s speech was not clear and 

she was “[k]ind of mumbling.” Coon explained that when they got 

to the third deck, “I was on one side and Paige was on the other 

side and she was leaning on us . . . we basically had to drag 

her . . . .” 

Lance Corporal Hobbs provided another perspective as to Pfc 

C’s demeanor at the smoke pit. Hobbs testified that Pfc C was 

constantly moving when he saw her, although he did not notice 

any lack of balance or see any stumbling. He also confirmed 

that she hugged some friends, was constantly laughing and 

giggling but was coherent when she spoke. In describing Pfc C’s 

exit from the smoke pit, Hobbs testified that she walked about 

fifteen feet to the barracks and once she got to the stairs, 

“[s]he stumbled up the first set of steps and used the railing 

and one other Marine as assistance getting up those back steps.” 

While Coon and Pfc C were at the smoke pit, their roommate 

Lance Corporal Richardson returned to their room. She found it 

in disarray with a liquor bottle, shot glasses and a six pack on 

the floor. As Coon and Pfc C were underage, Richardson went 

looking for them to find out what was going on. 

 

who had interacted with Paige but not Pfc C. Both sides 

presented testimony from substance abuse experts. 
United States v. Paige, No. 08-0805/MC 

7

Coon testified that when she and Paige brought Pfc C to the 

room they laid her “on her rack,” which was the lower level of 

the bunk beds in her room. Coon agreed with trial counsel’s 

characterization during cross-examination that Pfc C was quiet, 

that her body looked “lifeless” and “limp,” that she had no 

movement in her arms, legs, or hips, and that Pfc C could not 

pick up her head to turn and look at her. 

Richardson returned to the room and encountered Coon, Paige 

and Pfc C.4

 Richardson testified that Pfc C was “lifeless,” 

“just laying there.” She said that “[h]er eyes were just rolled 

back in her head and she was just sprawled out and there’s no 

movement”; “[h]er eyes were just fluttering and she was . . . 

mumbling [and] not making any sense . . . .” At Richardson’s 

request Paige left the room. Richardson then left to talk with 

a friend, Lance Corporal Creaser, who lived across the hall. 

Coon testified that she started to clean the room and left to 

take the trash to the dumpster. At that point Pfc C was alone 

in the room. 

Richardson testified that she was gone about five minutes 

and when she returned to her room, she found Paige on top of Pfc 

C having intercourse with her. Richardson told him to get off 

 

4

 Richardson testified that when she first returned to the room 

Coon was there but she did not remember whether Pfc C was there. 

She went to take a shower and when she returned, Coon and Paige 

were in the room and Pfc C was laying on her rack. 
United States v. Paige, No. 08-0805/MC 

8

and he said something like “nah, nah, it’s cool. She wants it, 

she said she wants it.” Richardson described Pfc C as “just 

lifeless,” “in really bad shape and her eyes rolled back in her 

head.” She testified that Pfc C did not react when she walked 

into the room or when Paige got off her. In describing Pfc C’s 

condition, Richardson testified that “she was just laying there 

limp the whole time with her arms out to her side . . . she 

wasn’t moving at all.” Richardson testified that Pfc C’s pants 

were lowered to her knees and she made no attempt to pull her 

pants up or roll over. Richardson yelled at Paige to get out. 

He fumbled to get his pants up and ran out of the room. 

Richardson called the duty NCO to report the incident and then 

went down to the duty desk to make sure the military police were 

coming. 

Coon testified that she had been gone from the room for 

about five to ten minutes and when she returned “[Pfc C] was on 

her bed and Richardson was on the phone. [Pfc C] had one pant 

leg off and she had one boot off.” Coon testified that Pfc C 

was “[n]ot responsive. She was more like in her own little 

world . . . off in a daze.” Coon indicated that Pfc C had not 

moved from the spot that she was in before Coon left to go to 

the dumpster, that Pfc C was exposed and not moving, and that 

Pfc C “was dazing off into space” as Coon tried to put her 
United States v. Paige, No. 08-0805/MC 

9

clothes back on her. Coon also testified that she “had to drag” 

Pfc C to the bathroom at Pfc C’s request. 

When Pfc C was informed that the military police had 

arrived she became combative and violent and gave Coon a bloody 

nose as she swung her elbows around. Lance Corporal Creaser saw 

Pfc C stumbling down the hall and restrained her until the 

corpsmen arrived. The various witnesses testified that Pfc C 

looked “[j]ust like a rag doll,” that she was drooling, 

mumbling, slurring words and obscenities, and not making any 

sense. There was testimony that her eyes were slightly rolled 

back in her head, that her head was straight down and her hair 

was in her face, that she was bobbing her head, that she could 

not hold her head up or stand by herself, and that the corpsman 

could not “get a real good response” to his questions. 

One corpsman testified that during the ambulance ride, Pfc 

C was not coherent. When they stimulated her physically or 

verbally she would respond with a head turn or opening her eyes. 

Her verbal responses were “just cursing” and her speech was 

“real slurred.” On cross-examination, however, the corpsman 

testified that he checked the box on a form turned over to the 

hospital indicating that she was “responsive.” 

The second corpsman testified that for the majority of the 

ride Pfc C was unresponsive and had vomit coming out of her 

mouth. When they tried to wake up Pfc C using verbal stimuli 
United States v. Paige, No. 08-0805/MC 

10

she did not usually respond. When they administered painful 

stimuli “she would just kind of slur out the cuss word and . . . 

then she’d just try and go back to sleep.” She became more 

responsive at the hospital as medical personnel started treating 

her. At that time, Pfc C was cursing at everyone. 

The emergency room doctor testified that Pfc C answered 

questions intermittently, telling the doctor “her name and that 

she probably knew where she was and the year that it probably 

was at that point.” The doctor testified that he rated Pfc C at 

eleven on the Glasgow Coma Scale because she was not 

spontaneously opening her eyes and it would take painful stimuli 

to arouse her. The rating for a normal person is fifteen, while 

the rating for a typical drunk person is around thirteen.5

 

2. Trial Counsel’s Closing Argument

During closing, trial counsel argued that Pfc C was 

incapable of consent. He recounted the trial testimony 

describing Pfc C’s condition from the time she began drinking in 

the barracks room with Paige and Coon until she was being 

treated by the corpsmen outside the bathroom. Trial counsel 

characterized the moments immediately before and immediately 

after the rape as “crucial time periods.” He emphasized that 

Richardson was an eyewitness to the rape itself. 

 

5

 The Glasgow Coma Scale is a measurement that physicians use to 

reflect the mental status of a patient, based on such things as 

motor function, verbal communications and eye movement. 
United States v. Paige, No. 08-0805/MC 

11

During his argument, trial counsel characterized facts and 

evidence related to Pfc C’s appearance during these crucial time 

periods as “uncontradicted.” He stated: 

These are what the facts are that you have in 

front of you. You don’t have -- and I say these are 

uncontradicts [sic] facts. 

. . . They’re uncontradicted because there’s not 

someone else there saying that’s not what was going 

on. You don’t have something confronting Lance 

Corporal Richardson and saying, uh-uh. She wasn’t in 

her rack, she was sitting up. I walked by and I saw 

it, she was looking out the window, they were having a 

conversation, or they were dry humping even. 

There’s is [sic] nothing like that. You’ve got 

Richardson in the room arms are limp and lifeless, no 

movement of her hips, head, legs; and when the accused 

gets off of her, she remains exposed. So there’s 

really -- there’s a few critical -- there’s sort of 

three parts to this: What was she like just before 

the rape? What was she like during the rape? What 

was she like immediately after the rape? 

. . . . 

Gentleman, Richardson was there, and the farther 

you get away from the time that he is humping her, the 

farther you get away from it, the more –- other 

stimuli you start to get and the weaker any sort of 

evidence from the Monday morning quarterback and say 

she wasn’t alert. 

Uncontradicted evidence at the time of the rape. 

Uncontradicted evidence moments after the rape; and 

this isn’t just Richardson, Coon is saying this too. 

Trial counsel showed slides to the members, two of which 

used the concept of “uncontradicted evidence.” One read: 

UNCRADICTED [sic] EVIDENCE AT THE TIME OF THE RAPE 

• “EYES ROLLED IN BACK OF HER HEAD” 
United States v. Paige, No. 08-0805/MC 

12

• NO REACTION AT ALL WHEN RICHARDSON WALKS 

IN OR ACCUSED DISMOUNTS 

• “ARMS ARE LIMP, LIFELESS” 

• “NO MOVEMENT OF HIPS, HEAD, LEGS” 

• REMAINS EXPOSED 

• “LIKE A RAG DOLL” 

Another slide read: 

 

UNCRADICTED [sic] EVIDENCE MOMENTS AFTER THE RAPE 

• VICTIM REMAINS EXPOSED 

• VICTIM REMAINS MOTIONLESS 

• VICTIM NOT COMMUNICATING CLEARLY 

• “LIKE A RAG DOLL” 

During his argument in rebuttal, trial counsel maintained 

that there were three “centers of gravity” -- the time 

immediately before the rape as witnessed by Richardson and Coon, 

the rape, which was witnessed in part by Richardson, and the 

time immediately after the rape when Richardson and Coon both 

confirmed she was unresponsive. Trial counsel argued that in 

all three centers of gravity Pfc C was the same: “unresponsive, 

she’s in her rack in the same position, she ain’t moving. She’s 

not communicating coherently. She doesn’t know what is going 

on; . . . .” 

Trial counsel also talked about how Richardson and Coon 

were the “last eyes” on Pfc C and “the evidence shows it wasn’t 

long” until the rape. Trial counsel stated: “Her center of 

gravity is going to be the evidence in front of you and this is 

the evidence, uncontradicted evidence of what her state was like 

last eyes on just before the rape.” 
United States v. Paige, No. 08-0805/MC 

13

During rebuttal, trial counsel also addressed the mistake 

of fact defense argued by defense counsel. He stated: 

If the accused had a honest and mistaken belief 

that [Pfc C] consented to the act of sexual 

intercourse, he is not guilty of rape. If the belief 

was reasonable. So step one this guy has to honestly 

believe that -- he’s got to honestly believe and 

assert that his mistake was honest. 

I’ll leave that to you, gentlemen. My focus is 

going to be on the reasonableness of it. . . . 

Defense counsel did not object to any of the comments made 

by trial counsel during his closing argument or to any of the 

slides. The military judge instructed the members: “The 

accused has an absolute right to remain silent. You will not 

draw any adverse inference to the accused from the fact that he 

did not testify as a witness. You must disregard the fact that 

the accused has not testified.” 

DISCUSSION 

The privilege against self-incrimination provides an 

accused servicemember with the right not to testify at his 

court-martial and precludes comment by trial counsel on his 

silence. U.S. Const. amend. V; Article 31(a), UCMJ; see Carter, 

61 M.J. at 33. Nevertheless, it is permissible for trial 

counsel to comment on the defense’s failure to refute government 

evidence or to support its own claims. See Carter, 61 M.J. at 

33; cf. Rule for Court-Martial (R.C.M.) 919(b) (“Arguments may 

properly include reasonable comment on the evidence in the case, 
United States v. Paige, No. 08-0805/MC 

14

including inferences to be drawn therefrom, in support of a 

party’s theory of the case.”). 

As we have repeatedly recognized: “A constitutional 

violation occurs only if either the defendant alone has the 

information to contradict the government evidence referred to or 

the [members] ‘naturally and necessarily’ would interpret the 

summation as comment on the failure of the accused to testify.” 

Carter, 61 M.J. at 33 (quoting United States v. Coven, 662 F.2d 

162, 171 (2d Cir. 1981) (quotation marks omitted)); see also

United States v. Webb, 38 M.J. 62, 66 (C.M.A. 1993) (quoting 

same).6

 We examine a prosecutorial comment “within the context 

of the entire court-martial.” United States v. Baer, 53 M.J. 

235, 238 (C.A.A.F. 2000). 

 Paige contends that trial counsel’s argument that there 

was uncontradicted evidence “at the time of the rape” and 

“moments after the rape” amounted to constitutional error. 

According to Paige, because Pfc C testified that she could not 

remember events immediately before, during, or after 

penetration, Paige was the only person who could testify as to 

 

6

 The Discussion to R.C.M. 919 suggests a similar rule: “Trial 

counsel may not argue that the prosecution’s evidence is 

unrebutted if the only rebuttal could come from the accused.” 

Although the Discussion is non-binding, we have previously 

recognized that this statement reflects applicable judicial 

precedent. See Carter, 61 M.J. at 33 (citing Manual for CourtsMartial, United States, Analysis of the Rules for Courts-Martial 

app.21 at A21-66 (2002 ed.)). 
United States v. Paige, No. 08-0805/MC 

15

Pfc C’s physical and mental state just prior to and at the time 

of penetration and was also the only person who could contradict 

the testimony of Richardson, who saw Paige and Pfc C having 

sexual intercourse. Paige also contends that trial counsel’s 

argument that Paige has “got to honestly believe and assert that 

his mistake was honest” followed by the comment, “I’ll leave 

that to you, gentlemen,” is a clear reference to his failure to 

testify. 

The Government responds that the entire court-martial was 

focused on Pfc C’s demeanor, her level of intoxication, and 

whether she was coherent at the time of the rape. The 

Government contends that this case involved a number of 

witnesses who observed Pfc C just before the rape and 

immediately after the rape, as well as an eyewitness to the rape 

itself. According to the Government, when examined in the 

context of the entire court-martial, trial counsel’s comments 

were directed at the competing evidence introduced by the 

parties and the defense’s failure to support its own claims. 

They were fair comment on the strength of the Government’s case 

and the failure of the defense to rebut the Government’s 

evidence through its witnesses. 

 Whether trial counsel’s comments improperly invoked Paige’s 

constitutional right not to testify is a question of law that we 

review de novo. See United States v. Moran, 65 M.J. 178, 181 
United States v. Paige, No. 08-0805/MC 

16

(C.A.A.F. 2007). In this case, defense counsel did not object 

to any of trial counsel’s comments, so we review for plain 

error. See Carter, 61 M.J. at 33. Paige meets the plain error 

standard if he establishes that “‘(1) an error was committed; 

(2) the error was plain, or clear, or obvious; and (3) the error 

resulted in material prejudice to substantial rights.’” United 

States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (quoting 

United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)). 

“Once [Paige] meets his burden of establishing plain error, the 

burden shifts to the Government to convince us that this 

constitutional error was harmless beyond a reasonable doubt.” 

Carter, 61 M.J. at 33 (citing United States v. Carpenter, 51 

M.J. 393, 396 (C.A.A.F. 1999)).7 

 

7

 As to the intersection of the plain error standard and the 

constitutional test for prejudice, the dissent asserts that “the 

majority incorrectly shifts the burden of persuasion from 

Appellant to the Government.” United States v. Paige, ____ M.J. 

____ (6) (Stucky, J., dissenting in part and concurring in the 

result, joined in Part II by Ryan, J.). The standard that we 

apply here is the constitutional standard as it has been 

articulated by this court in plain error cases since United 

States v. Powell, 49 M.J. 460, 465 n.* (C.A.A.F. 1998). See, 

e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 

2008); United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 

2005); United States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F. 

1999); cf. United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 

2007) (noting that “Article 59(a) is applied through standards 

of review and appellate burdens tailored to the issue on appeal” 

and that “[i]f the error is of constitutional dimension . . . the 

government must show that the error was harmless beyond a 

reasonable doubt”). In this case, the granted issue does not 

involve a challenge to the application of the constitutional 

test for prejudice in the context of plain error review, nor 

have the parties raised it in their briefs or argument before 
United States v. Paige, No. 08-0805/MC 

17

In this case, there were numerous witnesses who testified 

as to Pfc C’s condition while she was in the smoke pit before 

the intercourse and while she was in the hallway after the 

intercourse. Moreover, there were two witnesses who testified 

as to Pfc C’s condition during what trial counsel characterized 

as the “crucial time periods” in the case -- immediately before 

and immediately after intercourse. One of these witnesses, 

Richardson, testified for the Government; the other, Coon, 

testified for the defense. Richardson was the only witness to 

testify about the act of intercourse itself and she was not 

present at its onset. 

1. Whether the Defendant Alone Had the Information to 

Contradict the Government’s Evidence

a) Time Period When Paige and Pfc C Were Alone in the Room

The record does not support Paige’s assertion of error that 

trial counsel improperly argued that there was uncontradicted 

evidence “just prior to and at the instance of penetration.” 

While Paige was the only person who could testify as to Pfc C’s 

condition just prior to and at the instance of penetration, 

trial counsel’s closing argument did not focus on the time 

period when Pfc C and Paige were alone. Trial counsel’s 

comments were directed to the period of time when either 

Richardson or both Richardson and Coon were in the room. The 

 

this court. As such, consideration of this issue is best left 

for another day. 
United States v. Paige, No. 08-0805/MC 

18

Government did not put on any evidence describing Pfc C’s 

condition at the point of penetration and none of trial 

counsel’s references to uncontradicted evidence can be 

attributed to that moment in time. 

b) Time Period When Richardson Was in the Room with Paige and 

Pfc C

Trial counsel did argue that Richardson’s testimony as to 

what she observed after she returned to the room was 

uncontradicted, as did the slide entitled “UNCRADICTED [sic] 

EVIDENCE AT THE TIME OF THE RAPE.” While Coon returned to the 

room minutes later, for that brief period of time when 

Richardson was alone with Paige and Pfc C, Paige was the only 

person who could have contradicted Richardson’s testimony.8

 We 

 

8

 The dissent criticizes the majority for “chopping the trial 

counsel’s argument into three segments -- before, during, and 

after the rape -- and then analyzing them separately.” Paige, 

____ M.J. at ____ (7) (Stucky, J., dissenting in part and 

concurring in the result, joined in Part II by Ryan, J.). 

According to the dissent, this approach fails to view trial 

counsel’s argument “‘in its entire context.’” Id. (quoting 

Baer, 53 M.J. at 239). We agree that to analyze the alleged 

error, we must view trial counsel’s remarks in the entire 

context of trial counsel’s argument. Contrary to the dissent’s 

position, however, that is precisely what we are doing. In this 

case, trial counsel’s closing argument repeatedly focused on 

these “crucial time periods” and emphasized their separateness, 

as made clear, for example, by separate slides entitled 

“UNCRADICTED [sic] EVIDENCE AT THE TIME OF THE RAPE” and 

“UNCRADICTED [sic] EVIDENCE MOMENTS AFTER THE RAPE.” See supra

pp. 11-13. In the circumstances of this case, to consider 

whether trial counsel’s use of the phrase “uncontradicted 

evidence” amounted to an improper comment on the fact that Paige 

exercised his Fifth Amendment right not to testify in the 

context of trial counsel’s entire argument, we cannot ignore 

this aspect of trial counsel’s presentation. 
United States v. Paige, No. 08-0805/MC 

19

therefore conclude that as to this brief period of time, the 

“defendant alone has the information to contradict the 

government evidence referred to” and trial counsel’s comments 

were in error.9 Carter, 61 M.J. at 33 (citation and quotation 

marks omitted). 

While we determine that these references were error, we 

easily reach the conclusion that this error was not plain or 

obvious. Richardson’s testimony established that Pfc C did not 

respond when Richardson entered the room or when Paige 

“dismounted.” It also established that Pfc C’s eyes were rolled 

back in her head, that she looked lifeless, that her whole body 

was limp, that she was not moving at all, and that she remained 

exposed on her rack. 

The observations of Coon, a defense witness who returned to 

the room minutes later, corroborated almost all of Richardson’s 

 

9

 Pfc C testified that before waking up in the hospital after the 

incident, the last thing she remembers was playing a drinking 

game with Paige. She specifically had no recollection of having 

sexual intercourse with Paige. Under these circumstances, we 

conclude that the victim herself, who cannot remember the 

incident, cannot be considered a person who has “information to 

contradict the government evidence referred to.” Carter, 61 

M.J. at 33 (citation and quotation marks omitted). We recognize 

that her own testimony as to memory loss induced by alcohol 

consumption could potentially be seen as evidence that 

corroborates Richardson’s description of her condition during 

this time period. However, in this case, there was expert 

testimony that her memory loss is attributable to a “phenomena 

known as blackout” where a person is aware of what they are 

doing and alert at the time but then cannot remember their 

behavior or any of the activities they engaged in during that 

time period. 
United States v. Paige, No. 08-0805/MC 

20

testimony as to this period of time immediately after the 

intercourse. Coon testified that Pfc C was lying in the same 

place as she had been when Coon left the room, she was not 

moving, she did not respond when Coon walked over to her, she 

was off in a daze, she was exposed and Coon tried to put her 

clothes back on, and when Coon took her to the bathroom she had 

to drag her across the floor. In comparing Richardson’s 

testimony with Coon’s, we note that the two witnesses made 

nearly all the same observations about Pfc C’s unresponsive 

condition. 

The primary exception is that since Richardson returned to 

the room minutes before Coon, Richardson’s testimony also 

addressed Pfc C’s condition at the point in time that Richardson 

entered the room and at the point in time that Paige 

“dismounted.” However, even this testimony went to Pfc C’s 

unresponsiveness, an issue on which the testimony of Richardson 

–- the Government witness -- and the testimony of Coon -- the 

defense witness -- were consistent, tending to justify trial 

counsel’s characterization of such evidence as “uncontradicted.” 

As trial counsel emphasized: “[T]his isn’t just Richardson, 

Coon is saying this too.” In these circumstances, while we 

conclude that trial counsel’s references to uncontradicted 

evidence during this brief period of time constitute error, the 

error was not plain and obvious. 
United States v. Paige, No. 08-0805/MC 

21

c) Period of Time When Both Richardson and Coon Are in the Room

After intercourse occurred, Paige left the room shortly 

after Richardson returned and before Coon returned. Paige could 

not testify as to the observations of either Richardson or Coon 

during the period of time when he was not in the room. As such, 

this obviously is not a period of time where the “defendant 

alone has the information to contradict the government evidence 

referred to.” Carter, 61 M.J. at 33 (citation and quotation 

marks omitted). 

2. Whether the Members “Naturally and Necessarily” Would 

Interpret the Summation as a Comment on the Failure of the 

Accused to Testify

We are not persuaded that the members would “naturally and 

necessarily. . . interpret the summation as comment on the 

failure of the accused to testify.” Carter, 61 M.J. at 33 

(citation and quotation marks omitted). Trial counsel’s closing 

argument addressed the evidence raised through direct and crossexamination of numerous Government and defense witnesses who 

provided extensive observations of Pfc C’s condition as a 

sequence through time. The testimony of the defense’s own 

witnesses contributed to the development of the sequence, which 

extended beyond the “crucial time periods” immediately preceding 

and following the rape to the point where Pfc C was receiving 

medical attention at the barracks, in the ambulance, and at the 

hospital. In emphasizing that the evidence at the time of the 
United States v. Paige, No. 08-0805/MC 

22

rape and immediately after the rape was uncontradicted, trial 

counsel’s summation stressed consistency between the 

observations of Richardson and Coon, contrasting it with the 

more varied nature of the testimony surrounding the witnesses’ 

observations as the evening progressed. 

3. Trial Counsel’s Comment on the Mistake of Fact Defense

 Mistake of fact as to consent is an affirmative defense 

that can be raised even in the absence of the defendant’s 

testimony. See United States v. Sellers, 33 M.J. 364, 368 

(C.M.A. 1991). In discussing the mistake of fact defense in 

this case, trial counsel argued that Paige has to “assert” that 

his mistake was honest and then commented, “I’ll leave that to 

you, gentleman.” Trial counsel’s choice of words suggests that 

Paige had to testify to establish the defense, and we believe 

the members would naturally and necessarily interpret this 

aspect of trial counsel’s summation as comment on Paige’s 

failure to testify. As such, we determine that these remarks 

were plain and obvious error. 

On the facts of this case, however, we conclude that this 

error was harmless beyond a reasonable doubt. In Moran, 65 M.J. 

at 186-87, we addressed the harmless beyond a reasonable doubt 

standard when the error involved, among other things, remarks 

that trial counsel made during closing argument pertaining to an 

accused’s decision to exercise his Fifth Amendment rights. In 
United States v. Paige, No. 08-0805/MC 

23

Moran, we recognized that whether the error is harmless beyond a 

reasonable doubt “will depend on whether there is a reasonable 

possibility that the evidence [or error] complained of might 

have contributed to the conviction.” Id. at 187 (citation and 

quotation marks omitted, brackets in original). We recognized 

further: 

“To say that an error did not ‘contribute’ to the 

ensuing verdict is not, of course, to say that the 

jury was totally unaware of that feature of the trial 

later held to have been erroneous.” It is, rather, 

“to find that error unimportant in relation to 

everything else the jury considered on the issue in 

question, as revealed in the record.” 

Id. (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled 

on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 

(1991)). 

The evidence, much of which is recounted in detail above, 

strongly supports that Pfc C was incapable of consenting to 

sexual intercourse. Moreover, the extensive and consistent 

testimony addressing Pfc C’s condition immediately before the 

intercourse, strongly supports that the defense of mistake of 

fact as to consent did not exist in this case.10 Also, Lance 

Corporal Hobbs testified that he talked to Paige at the smoke 

 

10 At the time of Paige’s trial, the Government had the burden to 

prove beyond a reasonable doubt that the affirmative defense did 

not exist. See R.C.M. 916(b) (2000), amended by R.C.M. 916(b) 

(2008). This case does not implicate the recent change to this 

rule, which places the initial burden upon the accused to prove 

mistake of fact as to consent in a rape case by a preponderance 

of the evidence. See R.C.M. 916(b)(4) (2008). 
United States v. Paige, No. 08-0805/MC 

24

pit before the sexual intercourse occurred, and in reference to 

Pfc C, Paige stated that he “was going to try and hit that 

shit.” Further, the military judge instructed the members: 

“The accused has an absolute right to remain silent. You will 

not draw any adverse inference to the accused from the fact that 

he did not testify as a witness. You must disregard the fact 

that the accused has not testified.” This generalized 

instruction may not always be enough to overcome harm that 

arises when trial counsel improperly comments on the fact that 

an accused did not testify. See Carter, 61 M.J. at 35. 

However, considering this instruction together with the strength 

of the evidence tending to establish that the defense of mistake 

of fact as to consent did not exist in this case, we have no 

difficulty in reaching the conclusion that trial counsel’s 

remark was unimportant in relation to everything else the 

members considered. 

CONCLUSION 

 The testimony of Richardson, a Government witness, included 

observations of Pfc C’s condition that addressed the brief 

period of time in which she was alone in the barracks room with 

Pfc C and Paige. Because Pfc C testified that she could not 

remember this period of time, Paige was the only person with 

information that could have contradicted Richardson’s 

observations. By characterizing that portion of Richardson’s 
United States v. Paige, No. 08-0805/MC 

25

testimony as uncontradicted, trial counsel infringed on Paige’s 

Fifth Amendment right to not testify. In the context of this 

case, however, which included overlapping and consistent 

observations by a defense witness, we conclude that the error 

was neither plain nor obvious. 

We further conclude that when addressing the defense of 

mistake of fact as to consent during closing argument, trial 

counsel infringed on Paige’s Fifth Amendment right not to 

testify by arguing that Paige had to “assert” that his mistake 

was honest. While we find this constitutes plain and obvious 

error, we conclude that in the context of this case, it was 

harmless beyond a reasonable doubt. 

DECISION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 

 
United States v. Paige, No. 08-0805/MC 

 STUCKY, Judge, with whom RYAN, Judge, joins in Part II 

(dissenting in part and concurring in the result): 

 I agree with the majority in affirming the decision of the 

Court of Criminal Appeals, but I respectfully dissent from its 

analysis of the plain error doctrine and from its conclusion 

that trial counsel’s argument was error. 

I. Plain Error 

 The plain error doctrine grants “authority for an appellate 

court to reverse on the basis of error even though that error 

was not properly raised and preserved at the trial level.” 

Wayne R. LaFave et al., Criminal Procedure § 27.5(d), at 87-88 

(3d ed. 2007). “[R]ecourse” to the plain error doctrine may be 

had 

only on appeal from a trial infected with error so 

“plain” the trial judge and prosecutor were derelict 

in countenancing it, even absent the defendant’s 

timely assistance in detecting it. The [doctrine] 

thus reflects a careful balancing of our need to 

encourage all trial participants to seek a fair and 

accurate trial the first time around against our 

insistence that obvious injustice be promptly 

redressed. 

United States v. Frady, 456 U.S. 152, 163 (1982). 

 To establish plain error under military law, an appellant 

has the burden of demonstrating that (1) there is error, (2) the 

error is clear or obvious, and (3) the error materially 

prejudiced a substantial right of the accused. United States v. 
United States v. Paige, No. 08-0805/MC 

2

Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citing United States 

v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)). 

 The plain error doctrine “‘is to be used sparingly, solely 

in those circumstances in which a miscarriage of justice would 

otherwise result.’” United States v. Fisher, 21 M.J. 327, 328-

29 (C.M.A. 1986) (quoting Frady, 456 U.S. at 163 n.14); accord

United States v. Ruiz, 54 M.J. 138, 143 (C.A.A.F. 2000). When 

an appellant establishes the three-part plain error test, an 

appellate court such as ours has discretion to grant relief if 

it determines that the error “‘seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.’” 

United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United 

States v. Atkinson, 297 U.S. 157, 160 (1936)); United States v. 

Powell, 49 M.J. 460, 465 (C.A.A.F. 1998). Further, the Supreme 

Court has suggested that courts can deny relief in a case in 

which the alleged error did not seriously affect the fairness, 

integrity, or public reputation of judicial proceedings without 

deciding that an appellant’s substantial rights were prejudiced 

by the alleged error. See United States v. Cotton, 535 U.S. 

625, 632-33 (2002); Johnson v. United States, 520 U.S. 461, 470 

(1997). 

 The majority asserts that once an appellant has established 

plain, constitutional error, “the burden shifts to the 

Government” to establish that the error was harmless beyond a 
United States v. Paige, No. 08-0805/MC 

3

reasonable doubt. United States v. Paige, __ M.J. __ (16) 

(C.A.A.F. 2009) (citing United States v. Carter, 61 M.J. 30, 33 

(C.A.A.F. 2005)). But that language from Carter was derived 

from dictum in Powell, 49 M.J. at 464-65, that was based on 

United States v. Adams, 44 M.J. 251, 252 (1996), a case in which 

neither the issue granted for review nor this Court’s opinion 

discussed plain error.1

 

 The third prong of the military plain error test is derived 

from Article 59(a), Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 859(a) (2000). See Powell, 49 M.J. at 465. It 

requires an appellant to establish that “the error materially 

prejudice[d] the substantial rights of the accused.” Article 

59(a), UCMJ (emphasis added). The term “materially,” as used in 

Article 59(a), UCMJ, is best defined as “significantly.” See

Bryan A. Garner, A Dictionary of Modern Legal Usage 551 (2d ed. 

1995). 

 The federal plain error rule is similar. The appellant 

must establish that the error “affect[s] substantial rights,” 

Olano, 507 U.S. at 734 (quoting Fed. R. Crim. P. 52(b)), which, 

unless the error is structural, requires a showing of 

 

1

 This Court reached a similar conclusion in United States v. 

Moran, 65 M.J. 178, 185 (C.A.A.F. 2007), by citing to United 

States v. Alameda, 57 M.J. 190, 198 (C.A.A.F. 2002), a case in 

which the defense clearly preserved the error by objecting at 

trial to the trial counsel’s closing argument. 
United States v. Paige, No. 08-0805/MC 

4

“prejudicial effect on the outcome of a judicial proceeding.” 

United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004). 

To demonstrate this prejudicial effect, the appellant must 

demonstrate “‘a reasonable probability that, but for [the error 

claimed], the result of the proceeding would have been 

different.’” Id. at 81-82 (quoting United States v. Bagley, 473 

U.S. 667, 682 (1985) (opinion of Blackmun, J.)). 

 The language used in the third prong of the military and 

federal plain error doctrines differ, but they arrive at the 

same relative definition of prejudice. While prejudice under 

the federal rule requires the appellant to show a “prejudicial 

effect on the outcome of a judicial proceeding,” id. at 81, the 

military rule defines prejudice under the third prong to require 

the appellant to show the error “‘had an unfair prejudicial 

impact on the jury's deliberations.’” Fisher, 21 M.J. at 328 

(quoting United States v. Young, 470 U.S. 1, 16 n.14 (1985)). 

Based on these similarities, I would adopt the Supreme Court’s 

holding in Dominguez Benitez to military jurisprudence. An 

appellant satisfies the prejudice prong of the plain error test 

by demonstrating “‘a reasonable probability that, but for [the 

error claimed], the result of the proceeding would have been 

different.’” 542 U.S. at 81-82 (citation omitted). 

 Although the Supreme Court has not spoken directly on this 

issue, it has suggested that the plain error test need not be 
United States v. Paige, No. 08-0805/MC 

5

changed to accommodate non-structural, constitutional errors. 

See Johnson, 520 U.S. at 463 (trial judge failed to instruct the 

jury on materiality, an essential element of the perjury offense 

of which the appellant was convicted). If the error alleged is 

constitutional, the standard is the same; it just becomes easier 

for the appellant to meet his burden of showing “a reasonable 

probability that, but for the error, the result of the 

proceeding would have been different.” See Dominguez Benitez, 

542 U.S. 81-82 n.7 (citation and quotation marks omitted). 

 In a plain error case, as opposed to one in which the error 

is preserved, the burden of persuasion never shifts to the 

government;2

 it remains with the appellant, although the 

government has the opportunity to argue why the error is not 

prejudicial. When a military appellant meets the heavy burden 

of establishing “material” (significant) prejudice -- a 

reasonable probability that, but for the error the result would 

have been different -- it is impossible for the government to 

show the error was harmless beyond a reasonable doubt. By 

conflating the third prong of the plain error standard with the 

harmless beyond a reasonable doubt test for constitutional 

 

2

 Dominguez Benitez, 542 U.S. at 82; Olano, 507 U.S. at 734-35 

(noting that, in a plain error case, the normal burden on the 

government to show an error is harmless shifts to the appellant 

to show prejudice). 
United States v. Paige, No. 08-0805/MC 

6

error, the majority incorrectly shifts the burden of persuasion 

from Appellant to the Government. 

II. The Alleged Errors 

 On appeal of his conviction for rape, Appellant contends 

that the trial counsel committed plain error by arguing that (1) 

the evidence was uncontradicted, and (2) to establish the 

defense of mistake of fact as to consent, Appellant had to 

assert that his mistake was honest. 

 It is well established that the government may 

comment on the failure of a defendant to refute 

government evidence or to support his own claims. “A 

constitutional violation occurs only if either the 

defendant alone has the information to contradict the 

government evidence referred to or the jury ‘naturally 

and necessarily’ would interpret the summation as 

comment on the failure of the accused to testify.” 

Carter, 61 M.J. at 33 (quoting United States v. Coven, 662 F.2d 

162, 171 (2d Cir. 1981)). 

 This is not a case in which an appellant presented no 

evidence at trial. In an effort to contradict the Government’s 

case and establish that PFC C may have been conscious, the 

defense counsel vigorously cross-examined Government witnesses 

and presented several witnesses of their own, including Lance 

Corporal Coon, one of Private First Class (PFC) C’s roommates, 

who had observed PFC C before and after the alleged rape. 

Furthermore, it appears that this trial strategy of contesting 

the credibility of the prosecution’s witnesses may have had some 
United States v. Paige, No. 08-0805/MC 

7

effect on the members; after rebuttal, the members recalled the 

prosecution’s two main witnesses for further questioning. 

A. Uncontradicted Evidence 

 Before closing arguments, the military judge instructed the 

members that they had “the duty to determine the believability 

of the witness.” In making such determinations, the members 

were to “[c]onsider also the extent to which each witness is 

either supported or contradicted by other evidence in the case.” 

 The majority finds error in the trial counsel’s argument, 

that certain evidence was uncontradicted, by chopping the trial 

counsel’s argument into three segments -- before, during, and 

after the rape -- and then analyzing them separately. But “the 

touchstone of whether an argument is improper is . . . the 

argument itself viewed in its entire context.” United States v. 

Baer, 53 M.J. 235, 239 (C.A.A.F. 2000). 

 The defense turned the trial into a referendum on the 

credibility of the Government’s witnesses by showing 

inconsistencies in their statements. Facing such a defense 

trial strategy, it was appropriate for the trial counsel to 

forcefully assert, in accord with the military judge’s 

instruction on witness credibility, that on the important facts 

establishing the elements of the offense, the Government’s 

witnesses were uncontradicted. When “viewed in its entire 

context,” the argument was not error. 
United States v. Paige, No. 08-0805/MC 

8

B. Mistake of Fact 

 Before closing argument, the military judge informed the 

members that the evidence had raised the issue of mistake on the 

part of Appellant as to whether PFC C had consented to sexual 

intercourse and that the Government had the burden of proving 

beyond a reasonable doubt that such was not the case. In his 

closing argument, the defense counsel argued that the members 

should acquit because it was reasonable under the circumstances 

for Appellant to believe that PFC C had consented. He neither 

argued that Appellant honestly believed PFC C consented to 

sexual intercourse nor pointed to any evidence from which the 

court members could infer that he did. Appellant now objects to 

the following statement from trial counsel’s rebuttal argument: 

 If the accused had a [sic] honest and mistaken 

belief that [PFC C] consented to the act of sexual 

intercourse, he is not guilty of rape. If the belief 

was reasonable. So step one this guy has to honestly 

believe that -- he’s got to honestly believe and 

assert that his mistake was honest. 

 While the trial counsel’s argument could have been more 

artfully drawn, it did not amount to error, let alone plain 

error. The government is permitted to comment on the failure of 

an accused to support his own claims. Carter, 61 M.J. at 33 

(quoting Coven). The trial counsel was merely responding to 

defense counsel’s closing argument that asserted Appellant may 

have been operating under a mistake of fact as to consent 
United States v. Paige, No. 08-0805/MC 

9

because, under the circumstances, a reasonable man would have 

done so. Trial counsel had a right to remind the members that 

the mistake of fact defense requires a subjective, as well as 

objective, belief that PFC C consented to the sexual 

intercourse, and that Appellant had neither pointed to any 

evidence nor asserted that such was the case. The trial 

counsel’s argument was not error.