## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________
No. 2017000 03

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.


### EDWARD K. BROWN, JR. Lance Corporal (E

- 3), U.S. Marine Corps

Appellant

________________________ _ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Major M.D. Sameit, USMC

. Convening Auth ority: 3d Marine Aircraft Wing, Marine Corps Air Station Miramar, CA. Staff Judge Advocate’s Recommendation: Major J.A. Cacioppo

, USMC

. For Appellant: Lieutenant Jacob E. Meusch , JAGC, USN. For Appellee: Captain Brian L. Farrell, USMC ; Major Kelli A. O’Neil, USMC.

_________________________
Decided 2 Ju ly 2018

_________________________
Before M ARKS
, J ONES , and W OODARD
, Appellate Militar y Judges

_________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure
18.2.

_________________________ MARKS, Senior Judge:

A military judge sitting as a general court

- martial convicted the appellant, contrary to his pleas, of a single specification of sexual assault in violation of
Article 120

, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920United States v. Brown, No. 201700003

2 (2012). 1 The military judge awarded 30 months’ confineme nt and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.

The appellant as serts two assignments of error. First, the government failed to prove beyond a reas onable doubt that the victim did not consent to sexual intercourse or disprove the mistake of fact defense beyond a reasonable doubt. Thus the conviction is factually insufficient. Second, trial defense counsel were ineffective for failing to challenge the admissibility of the appellant’s statements and meaningfully cross

- examine multiple key
witnesses.
We find the appellant’s conviction for sexual assault factually insufficient in light of evidence of a mistake of fact and set aside the findings and

se ntence
, and dismiss the sole charge and specification.

I. B ACKGROUND
This case involves the single act of sexual intercourse that occurred in a brief relationship between a Marine and a college student. The relationship began in July 2015 when the ap pellant reached out to the college student, JW, via social media. They had a common friend in JW’s ex

- boyfriend, who
had been a member of the appellant’s unit. JW and the appellant exchanged messages and talk ed on a video chat application before meeting in person in late August 2015.

A. JW’s testimony

The night of Monday

, 3 1 August 2015

, the appellant visited JW at her apartment for the first time. The previous night, JW had gone to an urgent care clinic after suffering a nose bleed. She had been diagnosed wit h pharyngitis

— a red and inflamed sore throat

— and been directed to take ibuprofen, acetaminophen, and an antibiotic commonly known as a Z

- pack. Around 8:00 p.m. on Monday night, JW and the appellant agreed that he would come to her apartment that night, and she gave him her address. JW testified that it was the appellant’ s idea to visit and that she told him she did not want him to come over: “I was weak and tired and just sick and I had a
lot of homework to do. . . . I didn’t see a point to it.” 2 When asked on cross

examination to quantify how sick she felt on a scale of one to ten, with ten
“be ing gravely ill,” JW described herself as a “7.” 3 She testified that she gave

1 The military judge found the appellant not guilty of larceny of Basic Allowance for Housing, a violation of Article 121, UCMJ.

2 Record at 60.

3 Id . at 91.United States v. Brown, No. 201700003

3 the appellant her address because “ [h] e wouldn’t stop asking me and he had
offered to se t up the chair I had bought for my desk. So I figured the only way to get him to stop asking is to just let him over.” 4 The appellant arrived around 9:30 p.m. Monday night. They stayed in the living room for about two hours while the appellant attempted to assemble JW’s desk chair and JW did
homework. JW’s roommate came home around 11:30 p.m. , greeted the appellant, and went to bed in her bedroom

. Shortly thereafter, JW “invited” the appellant into her bedroom to watch
a television show on Netflix on her l aptop computer. 5 She testified that she expected the appellant to go home after the show was over, and then she would go to sleep. JW shut her bedroom door behind them and went into her
bathroom . She removed her clothes and her bra and change d into a “big t

shirt and mesh shorts” she normally “would wear to bed.” 6 JW emerged from the bathroom, turned out the lights in her bedroom, and she and the appellant lay on her bed watching the laptop which was open on her lap.

JW described what happened next as thre e separate incidents. First, the appellant kissed her. The kiss came about 20 minutes into the television episode. Based on JW’s narrative, it probably happened between midnight
and 12:30 a.m. She testified that the appellant was on top of her “a few
minut es,” but the kiss did not “necessarily” last that long. 7 According to JW

, she told the appellant, “No. Stop. I don’t want this to happen. This is not happening tonight.” 8 The appellant stopped, and they returned to the show.

A t some point , the laptop fell to the floor. She did not attempt to retrieve the laptop but closed it.
“Just a few minutes” later, the appellant kissed JW again. This was the
second kiss. The appellant rolled on top of her. It is unclear from JW’s testimony whether she pushed the appel lant off of her or he rolled off of her following the second kiss.

After this second incident, JW described a period of about an hour during
which she and the appellant lay “fairly silent with little conversation.” JW testified she “was staring at the ceil ing.” 9 Although JW estimated about an

4 Id . at 60.

5 Id . at 98

- 99.

6 Id . at 63.

7 Id . at 100.

8 Id . at 64.

9 Id . at 65.United States v. Brown, No. 201700003

4 hour passed, her subsequent testimony revealed it was likely closer to two
hours. On cross

- examination, JW testified that the appellant made multiple attempts to kiss her, but there was no “ other romantic activity goin g on during that time period

. ” 10

Then, at exactly 2:36 a.m., the appellant rolled on top of JW a third time.
JW was certain about the time because she reached for her iPhone on the
desk beside her bed and pressed the home button to display the clock. She
de scribed the appellant holding her wrists above her head while kissing and biting her neck and trying to pull down her shorts and underwear. JW said she was able to grab her underwear and pull them back up. She testified that she verbally protested, saying no “30 to 40 times,” 11 and she specifically declined his proposals that they perform oral sex on each other. After he
succeeded in a second attempt to remove her underwear, he tried to digitally penetrate her. But she swatted him away with her hands. She de scribed trying to push him off of her with her hands and legs and testified that he “forcefully” pushed open her legs and penetrated her with his penis

. 12 It is unclear when, but at some point JW said she gave up and went limp. She
testified that she “froze ” and “went into survival mode.” 13 The appellant eventually ejaculated on JW’s t

- shirt. She went to the bathroom, threw her clothes in the dirty laundry, put on clean clothes, and returned to bed with the appellant. She testified she did not ask him to leav e because she was afraid and believed there would be “some sort of repercussion from him.” 14

JW awoke the next morning , Tuesday, and prepared to go to school. She testified that she told the appellant she was angry with him and had not
wanted to have sex wi th him. According to her testimony, he replied , “it was okay. That [she was] not a slut for sleeping with someone on the first night.” 15 Nevertheless, JW and the appellant proceeded with plans that he would return to her apartment after her classes that aft ernoon. JW explained that she did not know what to say to dissuade him from returning. Instead she asked him to bring her food from a specific restaurant. So that afternoon, JW and the appellant met at her apartment, and she drove him back to campus
with h er so he could use the gym while she worked until 10:00 p.m

.

10 Id . at 10 0

- 0 1.

11 Id . at 68.

12 Id . at 69.

13 Id . at 129.

14 Id . at 70.

15 Id

.United States v. Brown, No. 201700003

5 Afterward they met at her car then stopped at a fast food restaurant and grocery store on the way back to her apartment where he spent the night a
second time. JW testified that she rebuffed his kisses on Tuesday night, and they did not have sex again. The appellant returned to the apartment a third time Wednesday afternoon . They talked about their plans to go out that Sunday . Her roommate observ ed the conversation , later testifiying that “it

seem ed to me like she was trying to get around ” their plans. 16 The appellant did not stay that night, departing around 7:00 p.m. after JW “very blunt[ly]”
told him he needed to leave. 17

They continued to text on Thursday and Friday about “random things. ” 18
JW bel ieved it was Thursd ay when the appellant cancelled their weekend plans, citing the arrival of a female friend in town for the weekend. She testified that she “literally jumped up and down” when the appellant cancelled their plans. 19 Her roommate testified t hat when JW told her about cancellation of the plans JW “had a big smile on her face and kind of did a little jump of excitement.” 20

On Friday, JW met a girlfriend who asked her how things were going with the appellant. JW “just burst out into tears and to ld her [friend] everything that happened

. ” 21 JW later confided in her roommate as well. The
record contains none of the content of those conversations. JW texted her ex

boyfriend about the incident as well

. Trial defense counsel called the ex

boyfriend to t estify that JW told him about waking up to the appellant kissing and touching her.

After opening up to her friend on Friday afternoon

, JW blocked the appellant from contacting her through any of her social media accounts. She ignored his text messages and refused to take his calls. The appellant contacted JW’s roommate who replied via text message that JW was upset with the appellant. Almost two weeks later , JW contacted the San Diego Police Department to report that the appellant had raped her. Neither he r report nor her interview was entered into evidence. A San Diego detective arranged for JW to initiate a pretext phone call with the appellant that
resulted in a 26

- minute recorded conversation

.

16 Id . at 143.

17 Id . at 74.

18 Id

.

19 Id. at 75.

20 Id . at 144.

21 Id . at 75.United States v. Brown, No. 201700003

6 B. The recorded pretext phone conversation between JW and the

a ppellant

In the company of the San Diego detective, JW placed the call to the appellant. During the first few minutes of the intercepted phone call between JW and the appellant, the appellant recounted his failed attempts to reach her, his message to her r oommate, and the roommate’s response. He understood from JW’s roommate that JW was upset, and he understood it to stem, at least partly, from the hickey he gave her. It was clear that he believed his relationship with JW had been evolving normally until sh e suddenly cut contact, and he claimed to have “ no idea ” 22 why JW was suddenly so upset with him.

JW confronted the appellant with details of the evening. She said, “I just
want to talk about this so we can move on from this.” 23 JW began with her objection t o his first kiss, an objection he “barely” remembered. 24 She said, “I
know I said no like 20 or 30 times.” 25 She asked him why he had come to her apartment that Monday night when he knew she was “super sick,” and he replied without hesitation, “because you w anted me to.” 26 The appellant agreed that JW did not say they we re going to have sex that night

. He acknowledged how the y stopped after she protested the first kiss and returned to watching Netflix. He did not disagree that he turned over on top of JW and k issed her a second time. JW reminded him how she expressed pain when he kissed her neck and concern that he would leave a mark. The appellant acknowledged this and responded that he stopped sucking on her
neck.

The appellant’s recollection of events implie d that physical activity between the two stopped and started repeatedly. He pointed to what he perceived as consent from her:

[I] wanna say two or three times we stopped where we didn’t do anything. There were times where you would touch me to feel

on me, and I was just like 27

. . .

22 Prosecution Exhibit (PE) 6 at 3:30.

23 Id . at 4:30.

24 Id . at 4:45.

25 Id . at 5:00.

26 Id . at 5:30.

27 I d . at 7:15.United States v. Brown, No. 201700003

7 There was a time where I was like stop and y ou just kept letting me go, and eventually we ended up having sex

. 28

. . . .

No, I’m not saying you let me just go and have sex. . . . When we were laying there you would let me keep doing what I’m doing. I remember t here were a few times when you touched me like you wanted me to keep going. 29

JW repeatedly redirected the conversation to when she said no . When she claimed that she said no while they were having sex, he insisted, “[w]h en we were actually having sex, you never said no.” 30 She confronted him about pulling down her shorts and underwear. He claimed she was not wearing shorts, only the big t

- shirt. JW testified that she threw away her clothing

, so the government presented non e of it as evidence.

When the appellant questioned the reason for th eir discussion, she said, “I want to move on. Like I want us to be okay.” 31 With in credulity in his voice,
he said:

No , you’re literally acting like I raped you. . . . If it was that

you w ould ’ve thrown a huge fit, and I wouldn’t have been there for like two days afterwards

. . . . And there’s very few times in there where you actually said no and you were like, almost like, get the hell out of my apartment. You would say no and then keep ki ssing me. Or you would say no, it would be fine. Or you’d say no, and you would touch me. Or I would touch you. 32

He repeated that he stayed at her apartment until Wednesday , and “ it was

never an issue. Only time it was an issue is when I said I was going t o take you out or whatever, and I couldn’t take you out because my friend was coming to town, and that was it. ” 33 JW remained silent , interrupting him only
to refocus the conversation on his admission that she said no

. Again she

28 Id . at 7:30.

29 Id . at 8:00.

30 Id . at 8:45.

31 Id . at 9:20.

32 Id. at 9:45.

33 Id . at 10:00.United States v. Brown, No. 201700003

8 explained she just wanted th e truth, and “I don’t want to have any animosity
between us.” 34

At this point the appellant began to admit, with a placating tone, that JW
said no. But “no” became disas sociated from any particular act, and it was unclear whether this was no to a hickey, n o to oral sex, or no to some other
sexual act

. T he appellant continued to adamantly and explicitly deny that the
sex was nonconsensual. JW asked if he held her arms down, and he replied with some exasperation, “Did I? I don’t know?” 35

Again she confronted h im about her saying, no. He replied, “I remember you saying no, because you sat there and you did the little, frickin’ whatever on my lips. ” 36 She countered, “the what?” 37 He explained, “y ou put your finger inside my lips.” 38

Both JW and the appellant grew au dibly frustrated with each other as their conversation reached an impasse. JW repeatedly pleaded for the appellant to admit the truth . “There will be no moving on for us if you can’t just admit to me the truth.” 39 The appellant insisted that he had told her the
truth . He offered an admission without remorse

, in a tone that did not sound genuine

. “It wasn’t okay with you, and yes, you did say no. . . . Having sex with you wasn’t okay. . . . Sorry, [ JW ] , like what do you want me to say?” 40 She replied with emot ion in her voice, “thank you. That’s really what I
wanted to hear.” 41 But she pressed on. When she asked him if he forced himself on her or held her down, he vehemently responded , “No!” 42 He distinguished their encounter from rape by saying:

Why you said no, and I just kept going? Because you would provoke me, first of all. Second of all, there was never a time where you. . . . You didn’t forcibly say it, like you weren’t killing me, you didn’t choke me, you didn’t freakin’ slap me, you

34 Id . at 10:45.

35 Id . at 12:05.

36 Id . at 12: 20

.

37 Id

. at 12:27.

38 Id. at 12: 30

.

39 Id . at 13:50.

40 Id . at 14:20.

41 Id . at 14:4 0

.

42 Id. at 13:25

, 14:50.United States v. Brown, No. 201700003

9 didn’t do anything. Yo u almost said it as if you wanted me to keep going, but you weren’t sure if you wanted to do it. 43

She asked if he were sorry, and he gave , by its tone, a half

- hearted apology
that he had done something to offend her and this had come between their
friends hip. As t hey continued to argue about whether their encounter constituted rape, it was clear that they disagreed about whether the
circumstances and the context in which no was uttered mattered. The appellant attempted to explain that rape would involve fo rce or alcohol. JW countered that the pain relievers and antibiotic she was taking were comparable to alcohol. The appellant disagreed.

JW returned to confronting the appellant with his admission that she said no. He responded, “I don’t want to keep reliv ing this.

. . . What do you want me to say?” 44 Then he tried complimenting her, said he would love to continue talking to her, and offered a more sincere apology, insisting he had not intended whatever happened. In response, she said “If you want to move
fo rward from this, then let’s just admit the truth.” 45 She asked how she could
trust him without him acknowledging that she said no and he forced himself on her. He responded, “because that is not what happened.” 46 He asked why she kept repeating herself, and she replied, “because you keep going back on what you’re saying. I don’t feel like you understand why I’m upset.” 47 He tried again, attempting to explain that he had not come to her apartment that night to take advantage of her for sex . She interrupted him and solicited a somewhat vague admission that he did not m ean to do it but did. Then she
asked , “do you think you just went too far?” 48 He replied , almost in a whisper

, “no. Why are you asking these questions? ” The conversation returned to her
desire for th e truth and his insistence that he had told her the truth. She said, “You’re not telling me the truth because you keep going back on your word. I just want to know that I can trust you.” 49 The appellant responded, “you’re never going to trust me.” 50 She said she just wanted to know that this wasn’t going to happen to someone else or to her again. In a measured tone

43 Id . at 16:00.

44 Id . at 20:45.

45 Id . at 22:40.

46 Id . at 23:00.

47 Id . at 23:15.

48 Id . at 24:4 0

.

49 Id . at 25:00.

50 Id. at 25:05.United States v. Brown, No. 201700003

10 that lacked sincerity, the appellant said, “ y es, you said no. Yes, I forced myself. If that’s how you

. . .” 51 JW interrupted him before he could f inish

, thanked him, and abruptly ended the phone call.

II. D ISCUSSION
The appellant avers that his conviction for sexual assault is legally and factually insufficient because he harbored a reasonable mistake of fact as to
JW’s consent to engage in sexual i ntercourse. We agree.

A. Applicable law

1. Legal and factual sufficiency

We review the legal and factual sufficiency of evidence de novo . Art. 66(c), UCMJ; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). A conviction is legally sufficient if, “ con sidering 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

- 25 (C.M.A. 1987) (quoting Jackson v. Virginia , 4 43 U.S. 307, 319 (1979)). In resolving 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).
“For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the [appellate court] are themselves convinced of the accused’s guilt beyond a reasonable doubt.” Turner , 25 M.J. at 325. “Such a review involves a fresh, impartial look at the evidence, giving no deference to the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into ac count the fact that the trial
court saw and heard the witnesses.” Washington , 57 M.J. at 399. “By ‘reasonable doubt’ is not intended a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack
of it in this case

. . . . The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt.” United States v. Loving , 41 M.J. 213, 281 (C.A.A.F. 1994).

51 Id. at 25:30.United States v. Brown, No. 201700003

11 2. Sexual assault, bodily harm, and consent

The appellant was charged with and convicted of sexual assault in
violation of Article 120(b)(1)(B), UCMJ, which was comprised of these
elements:

(1) That the accused committed a sexual act upon JW by causing penetration, however slight, of the vulva

. . . by the penis; and

(2) That the accused did so by causing bodily harm to JW

. (3) That the accused did so without the consent of JW. 52

Bodily harm “means any offensive touching of another, however slight, including any nonconsensual sexual act[.]” 53 I n this case, the bodily harm alleged was the “offensive touching of J.W., however slight, including any
nonconsensual act.” 54 “When the same physical act is alleged as both the actus reus and the bodily harm for the charged sexual assault, the government mu st prove lack of consent as an element.” 55 The government must prove beyond a reasonable doubt that JW did not consent to the physical act(s). 56 Consent is defined as:

[A] freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through
words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall
not constitute consent. 57

Lack of consent may be inferred based on the circumstances
of the offense. All the surro unding circumstances are to be considered in determining whether a person gave consent, or

52 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27

- 9 at 57 3

- 7 4 (10 Sep 2014).

53 M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (2012 ed.) (MCM), Part IV, ¶ 45.a(g)(3).

54 Charge Sheet.

55 Military Judges’ Benchbook at 575.

56 Id

.

57 MCM, Part IV, ¶ 45.a(g)(8)(A). See also Military Judges’ Benchbook at 576.United States v. Brown, No. 201700003

12 whether a person did not resist or ceased to resist only because of another person’s actions. 58

3. Mistake of fact

Evidence of a m isunderstanding of the circumstances su rrounding an offense may give rise to the defense of mistake of fact

. See R ULE FOR C OURTS

M ARTIAL (R

. C

. M

. ) 916(j)(1), M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (2016 ed.) ( MCM ) (“[I]t is a defense to an offense that the accused held, as a result of ignoranc e or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense .”). In the context of sexual assault committed by bodily harm

— where lack of consen t is an element

— mistake of fact can negate the element of consent.
If there is evidence or testimony “ tending to show that, at the time of the alleged offense, the accused mistakenly believed that [the alleged victim] consented to the sexual conduct alleg ed[,]” then the defense of mistake of fact
has been raised. 59 “ An accused is not required to testify in order to establish a
mistake

- of

- fact defense. The evidence to support a mistake

- of

- fact instruction can come from evidence presented by the defense, the prosecution or the

court

- martial.” United States v. DiPaola , 67 M.J. 98, 100 (C.A.A.F. 2008) (citing United States v. Jones , 49 M.J. 85, 91 (C.A.A.F. 1998)). Nor does
defense counsel’s failure to raise mistake of fact result in forfeiture of the
defense. S ee United States v. Sellers , 33 M.J. 364, 368 (C.M.A. 1991).

The evidence triggering the mistake of fact defense must show that the
accused’s mistake was both honest and reasonable. United States v. Hibbard

, 58 M.J. 71, 75 (C.A.A.F. 2003). See also R.C.M. 916(j)(1) ( “If the ignorance or mistake goes to any other element requiring only general intent [vice specific intent] or knowledge, the ignorance or mistake must have existed in the mind
of the accused and must have been reasonable under all the circumst ances.”).

“ M istake of fact as to consent” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person consented to the sexual conduct as alleged. The ignorance or mistake must have existed in the mind of the

accu sed and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that the other person

58 MCM, Part IV, ¶ 45.a(g)(8)(C). See also Military Judges’ Benc hbook at 576.

59 Military Judges’ Benchbook at 581.United States v. Brown, No. 201700003

13 consented. (Additionally, the ign orance or mistake cannot be based on the negligent failure to discover the true facts. “Negligence” is the absence of due care. “Due care” is what a reasonably careful person would do under the same or similar circumstances.)

[The factfinder] should consid er the inherent probability or improbability of the evidence presented on this matter. [The factfinder] should consider the accused’s age, education, experience, along with the other evidence in this case

. . . . 60

Although the appellant bears the burden of raising some evidence of a mistake of fact, the burden remains on the government to prove, beyond a reasonable doubt, that there was neither consent nor an honest and
reasonable mistake of fact as to consent.

The burden is on the pro secution to establish the guilt of the accused. If [the factfinder is] satisfied beyond a reasonable
doubt that the accused was not under the mistaken belief that the other person consented to the alleged sexual conduct, then
the defense of mistake does not exist. Even if [the factfinder]
conclude [s] that the accused was under the mistaken belief
that the other person consented to the sexual conduct as alleged, if [the factfinder is] convinced beyond a reasonable
doubt that, at the time of the charged offense, the accused’s
mist ake was unreasonable, the defense of mistake does not
exist. 61

But if the factfinder is not convinced beyond a reasonable doubt that the
accused was not under an honest and reasonable mistake of fact as to consent, then the defense exists. The government m ust overcome the defense and satisfy its burden of proving the elements of the offense, including lack of consent, beyond a reasonable doubt.

60 Id

. See also United States v. Paige , 67 M.J. 442, 455 (C.A.A.F. 2009) (in the context of sexual assault, “the mistake of fact defense requires a subjective, as well as objective, belief that [the other p erson] consented to the sexual intercourse”); Jones

, 49 M.J. at 91 (“‘a mistake

- of

- fact defense to a charge of rape requires that a mistake
as to consent be both honest and reasonable’”) (quoting United States v. Willis , 41 M.J. 435, 438 (C.A.A.F. 1995)) ( emphasis in original).

61 Id . at 582 (emphasis added).United States v. Brown, No. 201700003

14 B. The phone call, mistake of fact , and reasonable doubt

1. Admissions vs. confession

The government introduced the su rreptitiously recorded phone call between the appellant and JW as a prosecution exhibit and argued it was a confession. Although the appellant made repeated admissions, we do not believe they amounted to a confession of sexual assault

. A confession is “an acknowledgment of guilt.” M ILITARY R ULE OF E VIDENCE (M IL

. R. E VID .) 304(a)(1)(B), MCM . An admission is “a self

- incriminating statement falling short of an acknowledgment of guilt[.]” M IL

. R. E VID . 304(a)(1)(C).

Although we were not able to observe witness es testifying, w e were able to listen to the recording of the phone call. Our first impression was the tenor of the conversation. JW and the appellant spoke to each other in a familiar

tone indicative of a close personal relationship. The initial awkwardne ss in JW’s voice disappeared quickly. She referred to his knowledge of her. He made comments indicating that her opinion of him mattered and that he was sensitive to her feelings. JW and the appellant had communicated electronically for six weeks before th ey met in person, and this conversation reflected the existence of a relationship. To be clear, we do not believe the existence of this relationship formed a basis for consent to sexual activity. Instead it is relevant to our interpretation of the phone ca ll.

JW, who sat with a detective, employed three tactics to elicit admissions from the appellant. She confronted him with details of the night. Once he admitted that she said “no,” she tried to leverage those admissions to extract
more detailed admissions. This was almost entirely unsuccessful. She pleaded with him to tell her the truth. He responded repeatedly that he had told her the truth. Thirdly, she explained that she needed him to admit to what happened so she could get over it and move on. She also suggested that
resolution of th e issue would restore their friendship, trust between them, and some kind of relationship. The appellant was most responsive to these emotional pleas to tell her what she wanted to hear. She repeated these three
tactics in so mething of a cycle as she attempted to elicit something more than
an admission that she had said no. She argued that she said no, and he argued that the surrounding circumstances

— her actions

— communicated otherwise. As the conversation continually reached a n impasse, their audible frustration with each other grew.

On two occasions, the appellant made statements acknowledging guilt

. For multiple reasons, we believe they were offered to placate JW and not as genuine confessions . The first statement came midway through the
conversation. The appellant ended it with what sounded like a less thanUnited States v. Brown, No. 201700003

15 sincere apology and “what do you want me to say?” 62 JW responded with emotion and gratitude, telling him that was what she wanted to hear. But
either JW or the detective wa s not satisfied, and JW again attempted to extract more from the appellant. The cycle of confrontation and denial
restarted. Despite his admissions and even words amounting to a confession, the appellant consistently denied raping her, holding her down, or going too
far. The appellant expressed his weariness and desire to end the discussion

. She justified her persistence by saying, “ you keep going back on your word.” 63
What followed sounded like the appellant’s attempt to end a stalemate

— appeasement

— not a si ncere, remorseful acknowledgment of guilt. Once again, the appellant conditioned his words, saying, “[i]f that’s how you . . . [.]” 64 JW interrupted him before he could finish and then quickly ended the phone call.

2. Honest mistake of fact

The phone call rai sed the defense of mistake of fact. Trial defense counsel
chose not to pursue a mistake of fact defense but instead challenged JW ’s credibility

. Since a military judge

— not members

— tried the appellant,
instructions as to a mistake of fact defense were never at issue. There is no proffer of some evidence of mistake of fact to evaluate . Instead, we consider a mistake of fact defense in our de novo review of the legal and factual sufficiency of the appellant’s conviction for sexual assault

. The conversation pr ovide d ample evidence that the appellant honestly
believed his sexual encounter with JW was consensual. As sexual assault is a general intent offense, we must determine whether we are convinced beyond a reasonable doubt that the appellant did not act under a reasonable , as well as honest, mistake of fact when he had sexual intercourse with JW.

3. The surrounding circumstances

We cannot ignore the context surrounding the incident and the mistake of
fact at issue. According to JW, the appellant apparently misund erstood her feelings about his presence in her apartment , even before his first visit

. Th is misunderstanding continued for four days. A m istake n belief as to whether someone is welcome in another person’s home and company is both factually and legally dist inguishable from a mistake of fact as to consent to sexual activity. But it would be artificial to divorce a two

- hour mistake of fact about sexual activity from the surrounding week

- long misunderstanding. Whether

62 PE 6 at 14:20.

63 Id . at 25:00.

64 Id . at 25:30.United States v. Brown, No. 201700003

16 the appellant reasonably misconstrued JW’s thoughts and preferences about his presence in her home and their continued interaction is probative of his mistake as to her consent to sexual activity.

JW testified she did not want the appellant to come to her apartment th e night of Monday, 3 1 August

. S he gave him her address only to silence his persistent requests

. Early in their recorded call, she asked him why he insisted on coming to her apartment on a Monday night when she was so
sick

. H is reply was almost indignant. “Because you wanted me to.” 65
Pe rsistence is the only reason JW offered as to why she gave the appellant
her address when she did not want him to visit.

JW, who testified to feeling very unwell, invited the appellant to watch
Netflix in her bedroom into the early morning hours. She beli eved that the appellant would leave her apartment at the end of the show, and she would go to sleep alone. After admitting the appellant to her bedroom and shutting the door behind them, she went to the bathroom, removed her bra, and changed into her pajam as. She returned to the bedroom and turned out the light. In order to see the laptop screen on her lap, JW and the appellant must
have la in side by side on her bed. To be absolutely clear, none of this impl ies

, much less amount s to, consent to any sexual a ctivity, let alone sexual
intercourse. But these circumstances are relevant to our consideration of the reasonableness of the appellant’s mistake of fact.

Following the alleged sexual assault, JW changed her clothes

, returned to
her bed

, and slept with th e appellant until her alarm awakened her around 7:30 that morning. She testified that, immediately after the alleged assault, she could not confront the appellant “without some sort of repercussion from
him.” 66 But before leaving for school that morning, sh e “expressed to him how [she] was angry [

. ] ” 67 When h e responded by assuring her she was not a slut

, she clarified that she had not wanted to have sex with him

. JW went to school for the day, and the appellant presumably went to
work. But t hey proceeded wit h their plans to meet up that afternoon

. JW asked the appellant to pick up take

- out food for her on his way to her
apartment. She drove him from her apartment to the gym and then drove him back to her apartment where he spent a second night. He returned
We dnesday afternoon but did not stay the night. JW and the appellant talked about their plans to go out during the coming Labor Day weekend. JW’s

65 PE 6 at 5:30

.

66 Record at 70.

67 Id

.United States v. Brown, No. 201700003

17 roommate testified to observing this conversation and JW’s ambivalence and
lack of enthusiasm about their plans

. But it was the appellant who cancelled the plans the next day , citing the arrival of a female friend for a visit that weekend. JW and her roommate testified that JW responded to this cancellation with glee , but had the appellant not cancelled, the evidenc e suggests JW would have gone out with him again.

W e focus on what passed between the appellant and JW before and after
intercourse solely for the misunderstanding that developed and persisted
between them

. According to JW’s testimony, the appellant’s ver y presence in her apartment was always unwanted, with the possible exception of an hour watching Netflix. Yet the appellant came to her apartment three times, spent the night twice, maintained communications with her via text, and planned a weekend outing with her, apparently oblivious to her true feelings. During the phone call , he argued that her behavior was incongruent with her allegation

. Instead of detecting fear, antipathy, or even apathy in JW, he
asserted his belie f the relationship was progressing

. T he appellant contended everything was fine between them until he had to cancel their weekend plans. Outside of JW’s testimony, there is little evidence that the appellant’s misunderstanding was unreasonable.

In this context of misunderstanding , we look at the sexual act and the
mistake of fact as to consent to sex.

4. The government’s case

The prosecution’s evidence consisted almost entirely of JW ’s testimony

. Alcohol play ed no role in this case. JW did not allege in the phone call or at trial that she was asleep or unconscious before or during the sexual act. The
forensic evidence in the case consist ed of a photograph

, taken four to five days after the incident, of what appear ed to be a bruise on JW’s neck

. JW
attributed it to the appellant sucking on and biting her neck. Aside from her testimony, there was no evidence of injury or use of physical force. JW washed her sheets and clothing after the incident and then threw away her clothing. The government did not present the underwear the appellant allegedly removed

. JW did not report the sexual assault for almost two weeks, and there wa s no evidence of a sexual assault forensic exam. Other than the surreptitiously recorded phone call, there were no text messages or other communications between JW and the app ellant in evidence. JW’s roommate was in the apartment, in her own bedroom, during the entire
incident. But s he did not report hearing or seeing anything unusual. JW confided in a girlfriend and her roommate about the incident but waited a week to report a sexual assault. Her roommate and friend testified to her
distress but not about the content of their conversations. No law enforcement
interviews were admitted into evidence.United States v. Brown, No. 201700003

18 Although we owe the military judge’s verdict no deference, we acknowledge that h e saw and heard JW and other witnesses testify. See Washington , 57 M.J. at 399. We did not. Nevertheless, we surmise th e military judge found JW credible

, and our own assessment of the record
reveals no evidence that JW lied to investigators or the court.

Nor do we believe JW lied about or attemped to withhold information
from her medical records , as trial defense counsel suggested

. JW’s sore throat
and feelings of illness at the time of the incident are relevant not to her credibility but to the appellant ’s mistake of fact. JW emphasized the
weakness she felt during the appellant ’s visit . Her testimony indicated that she believed her weakness was relevant to her interaction with the appellant and that he should have recognized it . It is unclear how the app ellant would
have

— or should have

— known that a bloody nose, sore throat, over

- the

counter pain relievers, or an antibiotic would have left JW weakened.

To the extent we have concerns about JW’s credibility, they stem from the
record. During the phone call, JW told the appellant she said “ no like 20 or 30
times.” 68 By the time of trial, she testified that she said no “ 30 to 40 times.” 69 More important, t rial defense counsel effectively impeached JW with

statements about the incident she sent to her ex

- boyfriend via text message

. Her ex

- boyfriend testified that she wrote “she woke up to [the appellant] kissing her and touch ing her.” 70 This is c ontrary to her testimony that she was awake preceding the incident. According to the ex

- boyfriend, JW also
claimed to have confronted the appellant on the morning of the incident, saying “something along the lines of, ‘You raped me and I’m pressing charges[.]’” 71 JW denied such a statement.

JW’s testimony, on direct and cross

- examination, present ed legally
sufficient evidence of sexual assault. But t he recorded phone call both
corroborated and dispute d JW’s narrative

. The argument between JW and the appellant not only raised the mistake of fact defense but also dramatized the tension at the crux of our factual sufficiency revi ew

. JW tenaciously held to her position that her utterance s of “ no ” communicated her lack of consent

to sex. “An expression of lack of consent through words or conduct means
there is no consent.” 72 The appellant countered that JW’s non

- verbal behavior

68 PE 6 at 5:00.

69 Record at 68.

70 Id. at 190.

71 Id

.

72 MCM, Part IV, ¶ 45.a(g)(8)(A). See also Military Judges’ Ben chbook at 576.United States v. Brown, No. 201700003

19 under mined her words and communicated her consent. “A ll the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.” 73

In this case, the surrounding circumstances unfolded over a two

- hour period. To determine, beyond a reasonable doubt , whether the appellant’s
mistake of fact as to JW’s consent was not reasonable , we must inquire
further into th os e circumstances immediately preced ing the sexual act

.
5. The two

- hour gap

The events at issue unfolded over more than two hours . Both JW and the appellant were sober, and both were awake. But prosecutors presented
evidence about only a fraction of those two hours. There were two kisses a
few minutes apart sometime between midnight and 12:30 a.m. Then at 2:36 a.m., the appellant rolled on top of JW a third time . Intercourse occurred
within minutes.

Counsel elicited only vague testimony from JW about the interim period.
She testified that she l ay on her back staring at the ceiling, engaging in minimal conversation with the appellant. On cross

- examination she indicated
that h e attempted to kiss her multiple times, but she denied there was other romantic activity. Based upon the record before us, w e are skeptical that the appellant and JW lay still in near silence for two hours , especially in light of
the stop

- and

- go, back

- and

- forth sexual activity to which the appellant repeatedly alluded in the phone call

. He recounted kissing and touching, frequ ently stopping and then resum ing , sometimes at his initiative and
sometimes at hers. In his admissions, the appellant acknowledged her hesitation, which led him to stop. He explained why he continued despite the
word no. “ Because you would provoke me[.]” 74 Although expressed inarticulately, his impression of her subsequent invitation was clear. During the phone call

, JW den ied none of the appellant’s assertions

. She questioned only his claim that she put her finger between his lips. This was among the

most c redible of the appellant’s comments because of its spontaneity and oddity. The prosecution did not p rompt JW to rebut the appellant’s claims or elaborate further on her cursory denial of other romantic activity.

The se circumstances preceding the act in th is case may be highly probative of both consent and the reasonableness of the appellant’s mistake
of fact. B ut we are left to speculate about them

. W ithout more information,

73 MCM, Part IV, ¶ 45.a(g)(8)(C). See also Military Judges’ Benchbook at 576.

74 Id . at 16:00.United States v. Brown, No. 201700003

20 w e find that we cannot d etermin e, beyond a reasonable doubt, that the appellant ’s mistake of fact as to JW’s consent to sexual activity was
unreasonable.

6. The government’s burden

Once a mistake of fact is raised, the government must disprove it beyond a reasonable doubt in order to satisfy its burden of proving lack of consent beyond a reasonable doubt. W e are not convinced beyond a reasonable doubt that the appellant was not under the mistaken belief that JW consent ed . As

to whether that mistake was un reasonable , we have questions that leave us
with reasonable doubt.

Factual sufficienc y demands that we be able to exclude “every fair and rational hypothesis except that of guilt.” Loving , 41 M.J. at 281. H onest, conscientious doubt suggested by a lack of material evidence prevents that in
this case. Id . The government has fallen short of its burden, and we are not convinced beyond a reasonable doubt that , at the time of the charged offense,
the accused’s mistake was unreasonable. 75 Thus we find the conviction for sexual assault factually insufficient.

The appellant’s second assignment of er ror as to ineffective assistance of
counsel is moot.

III. C ONCLUSION
The findings of guilty and the sentence are set aside , and the charge and specification are dismissed

. Judge JONES concur s

.

WOODARD , Judge dissenting:

I must respectfully disagree w ith my colleagues. After weighing all of the evidence in the record of trial and making allowances for not having personally observed the witnesses, I, like the military judge in this case, am convinced of the appellant’s guilt beyond a reasonable doubt . A dditionally, as I find that the appellant’s trial defense counsel were not ineffective, I would affirm the findings and sentence.

In order for the appellant to claim a mistake of fact as to consent as a defense, his mistake must have existed in his mind at the time he engaged in
sexual intercourse with the victim . More importantly, his mistake must have been not only honest but also reasonable. I find that a ny mistake of fact as to

75 Military Judges’ Benchbook at 582.United States v. Brown, No. 201700003

21 the victim’s consent raised by the evidence in this case was proven, beyond a reasonable doubt, to be unreasonable.

Prior to 31 August 2015, the appellant and the victim had only communicated with each other via social media, Facetime , phone calls, and

text messages

. 1 There is no evidence in the record that any of these
communica tions were ever sexual in nature. The first time they ever physically interacted with each other was the night of 31 August 2015. 2 After arriving at the victim’s apartment around 9:30 p

. m ., for approximately two
hours the y remained in the living room where the victim studied and the appellant attempted to assemble a desk chair. 3 N othing in the record suggests that any conversation or actions between them that occurred during
this two

- hour period was of a sexual nature.

Sometime around midnight, the victim a nd the appellant began watching a television episode on her computer while lying on her bed. Prior to watching the television episode, the victim changed, in a bathroom out of the sight of the appellant, into her normal sleeping attire

— a big tee

- shirt, sho rts, and
underwear

. 4 Although the victim did not claim to hav e ever laid any ground rules about not having sex ual intercourse or engaging in other sexual acts that night, th is question was never posed to her by the government, defense,
or the court.

Durin g the first 30 minutes of the episode, the appellant made his first two attempts at sexual conduct with the appellant. Twice the appellant attempted to initiate sexual conduct by rolling over onto the victim and kissing her. 5 The victim verbally expressed her non

- consent to the sexual conduct by telling the appellant “No. Stop. I don’t want this to happen. This is not happening tonight.” 6 She also physically expressed her non

- consent by

1 Record at 58

- 59.

2 Id. at 60

- 61.

3 Id. at 61.

4 Id. at 90. Based upon my review of the record, it is unclear whether the victim was actually wearing a bra at this time. The only mention of a bra in the record is made when the trial defense counsel asks the victim, “[a]nd you were not wearing a bra?” to which the victim responded, “no.” Id. at 99. Without the ben efit of hearing the inflection of the victim’s voice as she made this statement, and with no further explaination in the record, the victim’s negative answer could be interpreted to mean either “no, I was not wearing a bra” or “no, I was wearing a bra.”

5 Id. at 63

- 64

6 Id.United States v. Brown, No. 201700003

22 pushing the appellant off of her. 7 Apparently the appellant heard,
unde rstood, and complied with the victim’s objections to both of these first
two instances because each time he rolled back off of her and ceased his attempt at foreplay

. 8

The evidence of what happened between them, or lack thereof, over the following two hour s

— 12:30 a

. m . to 2:36 a

. m

. — is, as the majority points out, probative on the issues of consent and mistake of fact. However, where my colleagues find reasonable doubt due to what they perceive as a critical two

hour gap in the evidence, my review of the reco rd reveals no such gap.

The record reveals that there are two opposing versions of what occurred during this time period. First we have the a c count the victim presented in

court , subject to the crucible of cross

- examination. The victim testified that
follo wing the appellant’s second attempt at engaging her in sexual conduct, she lay in the bed next to him “staring at the ceiling” and described that she and the appellant were “fairly silent with little conversation.” 9 On cross

examination the victim reconfir med that there was minimal talking, that she was staring at the ceiling, and that other than the appellant’s continued attempts to kiss her, there was no other “romantic activity going on” between
them. 10 In contrast, we have the appellant’s version of wha t happened during that time as gleaned from the 26

- minute recorded conversation. In the recording, the appellant mentions that the victim kissed, touched, and felt on him, and he did the same to her. 11
If the victim’s sworn testimony is credible and to be believed, nothing but small talk and some additional, less aggressive attempts by the appellant to kiss her occurred. If the appellant’s recorded, vague assertions are credible and to be believed, the two engaged in some mutual touching and fondling.
Altho ugh the evidence of what happened during this time period may be in conflict, it is, nonetheless, evidence of what did or did not occurr. “Reasonable
doubt

. . . does not mean the evidence must be free from conflict.” United
States v. Rankin , 63 M.J. 552, 557 (N

- M. Ct. Crim. App. 2006) )

, aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007) (citation omitted). By believing that they are left to speculate about the interactions between the victim and the appellant during this time period, the majority miscons trues the evidence

7 Id

.

8 Id . at 63

- 64.

9 Id . at 65.

10 Id . at 100

- 01.

11 PE 6 at 7:20, 7:41, 8:01, and 9:53.United States v. Brown, No. 201700003

23 actually contained within the record. It is either as the victim described in her sworn testimony or it is as the appellant claimed in the recorded
conversation.

Although what happened between the appellant and the victim before

2:36 a

. m . is probative on the issues of consent and the reasonableness of any
mistake of fact as to that consent

— what happened after 2:36 a

. m . is even more so. The victim’s description of what occurred is disturbing and graphic.

The victim testified that the app ellant, just as he had done twice before, initiated his final assault by rolling “back over on top of [her] at 2:36 in the morning and he started dry humping [her].” 12 She described the appellant’s facial expression as, “the look in his face was just compl etely different than
the first two times.” 13 She went on to explain how “[she] kept telling him no and stop and [she] wasn’t comfortable with this and [she] didn’t want this to happen” but the appellant just “ignored [her].” 14 She further testified how she
resist ed the appellant’s efforts by pushing him away with her hands, but he then forcefully held her hands above her head

, kiss ed and bit her neck , and attempt ed to remove her shorts and underwear. Although the appellant was
able to remove her shorts and throw them on the floor, she managed to grab her underwear and pull them back up . However, despite her efforts, the appellant was later successful in removing her underwear . When asked why she resisted the appellant’s efforts to remove her underwear, she r esponded

— “[b]ecause I didn’t want him to rape me.” 15

The victim then described how, after the appellant had successfully removed her underwear, “[h]e tried to stick himself inside [her],” and how “he tried to finger [her]” but that she was able to thwart his attempts by “push[ing] his hands away.” 16 The victim also testified that during this time the appellant told her that he wanted to perform oral sex on her and that he wanted her to perform oral sex on him, to which the she responded “either [sic] one w asn’t going to happen. ” 17 She explained how, throughout this final assault, she told the appellant, in a variety of way s , “ no

— 30 to 40 times, ” 18

12 Record at 65.

13 Id

. T he victim later described this look as “an angry face like he was going to get what he wanted to and there wasn’t any stopping him no matter what.” Id . at 68

- 69.

14 Id . at 65.

15 Id. at 67.

16 Id.

17 Id.United States v. Brown, No. 201700003

24 and that as the appellant “forcefully

. . . pushed open her legs and penetrated
her

, ” 19 she was trying to push him off of her with her hands and legs.

After unsuccessful preventing the appellant to penetrat e her by telling
him “ no ” and “ stop ” multiple times, by pushing him away with her arms and legs, and by pushing his hands away from her genitalia, the victim e xplained that at that point she “didn’t have the strength to do it anymore,” she “just gave up,” and “went into survival mode which was just to lay limp and let
him take what he wanted.” 20 The victim later clarified on cross

- examination that she just “froz e”

— no yelling, screaming, or further resistance, and that she just “wanted to get through it.” 21

Noting that the defense never pursued or argued mistake of fact as to consent during the trial, and the appellant did not testify, if the evidence of
the sexu al assault in this court

- martial ended here, we would have “ no insight as to whether appellant actually or subjectively did infer consent
based on the se circumstances” of the evening leading up to the sexual
intercourse. United States v. Willis , 41 M.J. 43 5, 43 8 (C.A.A.F. 1995). Accordingly, if there is evidence of mistake of fact as to consent to be found in
the record

— it must be found in the recorded 26

- minute conversation.

In evaluating the content of the recorded conversation, it is important to

recogn ize the context and circumstances under which the recording was made and the purpose of the conversation. Although the appellant may not have realized it at the time, in reality, this was not an instance of a private
conversation between two individuals tr ying to work out their differences. Nor was it a sworn deposition. Instead, it was a conversation initiated as part of a criminal investigation with the victim being guided by a civilian law enforcement agent. As revealed by the oft

- repeated questions of t he victim, the purpose of the conversation was to confront the appellant with the victim’s allegation and her account of what happened; have him confirm as much of that account as possible; and attempt to obtain an apology.

I agree with my colleagues that the appellant made several statements that provides some evidence upon which we can rely to find that he actually or subjectively did infer the victim consented to the sexual intercourse. As such, I agree that the defense of mistake of fact as to consent w as raised by the evidence presented in the recorded conversation and the government was

18 Id . at 68.

19 Id. at 69.

20 Id . at 68.

21 Id. at 129.United States v. Brown, No. 201700003

25 required to prove beyond a reasonable doubt that his mistake was
unreasonable. H owever, unlike the majority, I find the government has met its burden.

Although the appe llant’s assertions in these statements reveals for us the circumstances of why he may have honestly believed that the victim consented to sexual intercourse, the law requires more. No matter how honestly held the appellant’s belief may have been, his belie f must still have been reasonable. The reasonableness of his belief must be considered in light
of all of the circumstances

— not just the potentially self

- serving assertions pointed out by my colleagues, or the circumstances of the assault as described by t he victim testimony

— but also the statements made by the appellant during the recorded conversation which were against his interest. The statements he made against his interest fall into three basic categories: (1) acknowledgments that the victim had verbal ly expressed her non

- consent; (2) confirmation of some of the details of the night as described by the victim in her sworn testimony; and (3) the admissions and apologies of the appellant.

First, over the course of the 26

- minute conversation, after initial ly stating that he “barely” 22 remembered her telling him no, the appellant later unequivocally acknowledged at least 17 times during the conversation that the victim had objected

— at least verbally

— to his sexual advances that night prior to him engaging in sexual intercourse with her. Some of these objections were so forceful, the appellant described them as “you were almost like get the hell out of my apartment.” 23

Second, in addition to acknowledging that the victim had verbally expressed her lack of cons ent to his sexual advances, the appellant also confirmed other details of the night as described by the victim during her sworn testimony. For instance, the victim told him to stop biting

— or, as described in the conversation, sucking

— on her neck because it hurt and was going to leave a mark. 24 The sexual advances had come in waves 25

— “[I] wanna say two or three times we stopped where we didn’t do anything.” 26

22 PE 6 at 4:45.

23 Id . at 9:43.

24 Record at 68; PE 6 at 6:31 and 7:10.

25 Record at 63

- 69.

26 PE 6 at 7:15United States v. Brown, No. 201700003

26 Sexual intercourse had , in fact, occurred. 27 And finally, after the appellant penetrated the victim, she stopped resisting

. 28

Finally, the appellant admitted not once, but at least three times during the conversation that having sexual intercourse with the victim that night

was not okay with her and followed each of these admissions with apologies.
The f irst instance occurred after t he appellant admitted that the victim had
said no to his advances:

JW: So if I said no, how did you think that I wanted to have
sex?

APP: It wasn’t OK with you and you said no.

JW: What did you say? I’m sorry, I can’t hear yo u?

APP: It wasn’t OK with you. And yes, you did say no.

JW: What wasn’t OK with me?

APP: Having sex with you wasn’t OK and you did say no. Sorry, [ JW ] , like what do you want me to say.

JW: Thank you. That’s what

— that’s that’s really what I
wanted to hear. 2 9

After this first admission and apology, the appellant went on to confront the victim with how she never “forcefully” said no, and how she “almost said it as if [she] wanted [him] to keep going but [she wasn’t] sure if [she] wanted to do
it.” 30 The appell ant’s next acknowledgment and apology occurred shortly after this explanation of why he continued despite her verbal protest:

JW: Well, I mean, you just had admitted to me that I said no
and you continued to do that. So I don’t understand why you
think tha t I had to choke you or something because I did push you off. Don’t you remember that? I mean you just jumped back upon me. Why is that OK?

APP: I didn’t say it was OK.

JW: So are you sorry?

27 R ecord at 69; PE 6 at 7:10, 7:34, 8:17, 8:48, 14:31, and 21:43.

28 Record at 68 and 129; PE 6 at 8:48 (The appellant stated, “[w]hen we were actually having sex, you never said no.”).

29 PE 6 at 14:14.

30 Id . at 15:50.United States v. Brown, No. 201700003

27 APP: [ JW ]

, at this point I’m over it. I’m sorry that came
between our friendship like that. That it cuts between whatever we had. So for like a perfectly clean cut, cut us away from each other. It is what it is. I’m sorry about that. Sorry that I did whatever I did to make you feel so offended or make

you feel like I’m a bad guy or make you feel like sex was the only thing I wanted from you. Or sex is the only thing I intended from you. Or sex is the

— like I’m sorry that you feel , I pulled myself onto you like I almost raped you. I’m sorry that you feel any type of way

. T hat wasn’t how I wanted you to feel. I’m sorry. 31
The appellant’s final acknowledgment and apology came at the end of the conversation after the two had discussed whether the appellant had forced
himself on her:

JW: OK, looking back, I mean do you think y ou just went too
far?

APP: No, [ JW ] , why are you asking these questions?

JW: I have told you over and over. I just want the truth RJ. That’s it. I don’t know why you can’t just admit this to me?

APP: I just told you the truth and you keep asking me differe nt questions. Why do you keep asking me different questions?

JW: Because you’re not telling me the truth because you keep going back on your word. I just want to know that I can trust

you.

APP: [ JW ] , you’re never going to trust me again.

JW: You don’t know that.

APP: I do.

JW: I Just want to know that this isn’t going to happen to

some body else or this won’t happen to me again. That’s all. I just, that’s all I want to know.

APP: [ JW ] , yes you said no. Yes, I forced myself on you cause that’s how you

. . 32
JW: Thank you. Thank you. That’s all I needed to hear.

31 Id . at 16:35.

32 The appellant’s v oice trails off and he never finishes this statement.United States v. Brown, No. 201700003

28 APP: I, I’m sorry.

JW: Going forward I just need to take some time and I’ll, I’ll be in touch with you. But I appreciate you telling me the truth RJ. I really do. This is going to help a lot for me to move on and clarify

. . . APP: [ JW ].

JW: .

. . things. I’m on campus right now. I need to go. There is somebody walking by and I’m about to bust out in tears so I really need to go.

APP: [ JW ].

JW: Sorry.

APP: [ JW ]. [ The phone line goes dead. ] 33

One could a rgue that these statements were confessions and not just admissions and apologies. As such, they would belie any claim that the appellant’s mistake of fact was honest. However, viewing them in the light most favorable to the appellant as admissions, these statements still weigh heavily against the reasonableness of his belief. At least 17 times during the
short 26

- minute conversation the appellant admitted that he heard the victim voice her objection to his sexual advances. He even acknowledged that
some of those objections were made in a forceful manner. He admitted numerous times that having sexual intercourse was not okay with her and apologized. Notably, the unreasonableness of his belief may be best demonstrated by what the appellant did not say in the conversation. The appellant never said or implied that the victim verbalized her consent to his sexual advances. Instead, he argued with her that if he was sexually assaulting her that night she would have done more to prevent him from doing so. 34

The majo rity divines from the tone and tenor of his voice in the recording that the appellant is placating the victim, offering disingenuous admissions that she said no and that he forced himself on her, and giving hollow apologies

— because that is what she wants t o hear. Listening to the same
recorded conversation I hear something quite different. I hear an appellant
who quickly evolved over the short 26

- minute conversation from one who may have been initially adamant in his belief that he had done nothing wrong an d may have believed his sexual experience with the victim was one of mutual

33 PE 6 at 24:30.

34 Id . at 15:50.United States v. Brown, No. 201700003

29 consent, to one one who

— after repeatedly acknowledging the victim ha d objected to his sexual advances and recognizing the unreasonableness of his
own belief regarding the victim’s consent

— sounded contrite and remorseful
because he had ignored, missed, or misinterpreted her words and actions that night and had forced himself on her.

W hat implication we assign to the tone and tenor of the appellant’s voice in the recording, and our view of the sincerity or emptiness of his admissions and apologies can be debated. However

, the record is clear on this

— the victim did not consent to sexual intercourse with the appellant. There was no freely given agreement to the conduct at issue. The vi ctim repeatedly expressed her lack of consent through her words and resistive conduct. T he appellant chose to ignore the se repeated verbal and unrebutted physical expressions of non

- consent. He was singularly focus ed on engaging in sexual
intercourse rega rdless of the numerous stop signs put up by the victim.

Even assuming arguendo , the appellant was under the honestly mistaken belief the victim was consenting to the sexual intercourse because of any mixed signals he may have receiv ed from the victim, to be reasonable his mistake must have been based upon information, or lack of it, that would indicate to a reasonable person that the victim consented . Not that she may have consented

, but that she did consent to sexual intercourse. C onsidering
the victim ’ s continuous verbal and physical protests to the appellant’s sexual
advances

, his belief that she consented to sexual intercourse was , beyond a
reasonable doubt

, unreasonable. T he appellant’s mistake was based upon his negligent failure to exercise due care to discover whether or not the victim was, in fact, consenting to sexual intercourse. Under the circumstances the appellant found himself in those early morning hours, I have no doubt that a reasonably careful person would have stopped sex ually pursuing th e victim until after they had obtained a clear understanding of and affirmation of the
victim’s consent to sexual intercourse before penetrating her.

For these reasons I would affirm the appellant’s sexual assault conviction.

For the Court

R.H. TRO IDL Clerk of Court