UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700003

_________________________

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 Authority: 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 July 2018

_________________________

Before MARKS, JONES, and WOODARD, Appellate Military 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. § 920 
United States v. Brown, No. 201700003

2

(2012).1 The military judge awarded 30 months’ confinement and a 

dishonorable discharge. The convening authority approved the sentence as 

adjudged and, except for the punitive discharge, ordered it executed.

 The appellant asserts two assignments of error. First, the government 

failed to prove beyond a reasonable 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 

sentence, and dismiss the sole charge and specification. 

I. BACKGROUND

 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 appellant 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 talked on a video chat application before meeting in person in

late August 2015.

A. JW’s testimony

The night of Monday, 31 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 with 

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 crossexamination to quantify how sick she felt on a scale of one to ten, with ten 

“being 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 set 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 laptop 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 changed into a “big tshirt 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 three 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 

minutes,” 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. 

At 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 appellant 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 ceiling.”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 going 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 

described 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 described 

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 leave 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 with 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 afternoon. 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 her so he could use the gym while she worked until 10:00 p.m. 

 

10 Id. at 100-01.

11 Id. at 68.

12 Id. at 69.

13 Id. at 129.

14 Id. at 70.

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

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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 observed the conversation, later testifiying that “it 

seemed 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 believed it was Thursday 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 that 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 told 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 exboyfriend about the incident as well. Trial defense counsel called the exboyfriend to testify 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 her 

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

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B. The recorded pretext phone conversation between JW and the 

appellant

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 roommate, 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 she 

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 to 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 wanted me to.”26 The appellant

agreed that JW did not say they were going to have sex that night. He

acknowledged how they 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 kissed 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 implied 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 like27

. . .

 

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 Id. at 7:15.
United States v. Brown, No. 201700003

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There was a time where I was like stop and you 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 there 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]hen 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 none of it as evidence.

When the appellant questioned the reason for their discussion, she said, 

“I want to move on. Like I want us to be okay.”31 With incredulity in his voice,

he said:

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

you would’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 kissing 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 to 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

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explained she just wanted the 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 disassociated from any particular act, and it was 

unclear whether this was no to a hickey, no to oral sex, or no to some other 

sexual act. The 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 him 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, “you put your finger 

inside my lips.”38

Both JW and the appellant grew audibly 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 emotion 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 14:40.

42 Id. at 13:25, 14:50.
United States v. Brown, No. 201700003

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didn’t do anything. You 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 

friendship. As they 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 force 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 reliving 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 

forward 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 mean 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 the 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 24:40.

49 Id. at 25:00.

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

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that lacked sincerity, the appellant said, “yes, you said no. Yes, I forced 

myself. If that’s how you . . .”51 JW interrupted him before he could finish, 

thanked him, and abruptly ended the phone call.

II. DISCUSSION

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 intercourse. 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, “considering the evidence in the light most 

favorable to the prosecution, a reasonable factfinder could have found all the 

essential elements beyond a reasonable doubt.” United States v. Turner, 25 

M.J. 324, 324-25 (C.M.A. 1987) (quoting Jackson v. Virginia, 443 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 account 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

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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 In 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 must 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 surrounding 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 573-74 (10 

Sep 2014).

53 MANUAL FOR COURTS-MARTIAL, UNITED STATES (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

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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 misunderstanding of the circumstances surrounding an 

offense may give rise to the defense of mistake of fact. See RULE FOR COURTSMARTIAL (R.C.M.) 916(j)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2016 ed.) (MCM) (“[I]t is a defense to an offense that the accused held, as a 

result of ignorance 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 consent 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 alleged[,]” 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. See 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 circumstances.”).

“Mistake 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 

accused 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’ Benchbook at 576.

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

13

consented. (Additionally, the ignorance 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 consider 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 prosecution 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

mistake 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 must 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 person] 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

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

1. Admissions vs. confession

The government introduced the surreptitiously 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.” MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 

304(a)(1)(B), MCM. An admission is “a self-incriminating statement falling 

short of an acknowledgment of guilt[.]” MIL. R. EVID. 304(a)(1)(C).

Although we were not able to observe witnesses testifying, we 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 awkwardness 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 they 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 call.

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 the 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 something 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 an 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 than 
United 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 was 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 sincere, 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 raised 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 provided 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 misunderstood her 

feelings about his presence in her apartment, even before his first visit. This

misunderstanding continued for four days. A mistaken belief as to whether 

someone is welcome in another person’s home and company is both factually 

and legally distinguishable 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 the

night of Monday, 31 August. She 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. His reply was almost indignant. “Because you wanted me to.”65

Persistence 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 believed 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 pajamas. 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 lain side by side on her bed. To be absolutely clear, none of this implies, 

much less amounts to, consent to any sexual activity, 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 the 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, she “expressed to him how 

[she] was angry[.]”

67 When he 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 they proceeded with 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 

Wednesday 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 evidence 

suggests JW would have gone out with him again.

We 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 very 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 belief the relationship was progressing. The 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 played 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 consisted of a photograph, taken four to five 

days after the incident, of what appeared 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 was 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 appellant in evidence. JW’s 

roommate was in the apartment, in her own bedroom, during the entire 

incident. But she 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 he saw and heard JW and other witnesses testify. See 

Washington, 57 M.J. at 399. We did not. Nevertheless, we surmise the 

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 appellant would 

have—or should have—known that a bloody nose, sore throat, over-thecounter 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, trial 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 touching her.”70 This is contrary 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, presented legally 

sufficient evidence of sexual assault. But the recorded phone call both 

corroborated and disputed 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 review. JW tenaciously held 

to her position that her utterances 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’ Benchbook at 576.
United States v. Brown, No. 201700003

19

undermined her words and communicated her consent. “All 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 those circumstances immediately preceding 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 lay on her back staring at the ceiling, engaging in 

minimal conversation with the appellant. On cross-examination she indicated 

that he attempted to kiss her multiple times, but she denied there was other 

romantic activity. Based upon the record before us, we 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, 

frequently stopping and then resuming, 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 denied none of the appellant’s assertions. She questioned

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

most credible of the appellant’s comments because of its spontaneity and 

oddity. The prosecution did not prompt JW to rebut the appellant’s claims or 

elaborate further on her cursory denial of other romantic activity.

These circumstances preceding the act in this case may be highly 

probative of both consent and the reasonableness of the appellant’s mistake 

of fact. But we are left to speculate about them. Without 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

we find that we cannot determine, 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. We are not convinced beyond a reasonable doubt 

that the appellant was not under the mistaken belief that JW consented. As 

to whether that mistake was unreasonable, we have questions that leave us 

with reasonable doubt. 

Factual sufficiency demands that we be able to exclude “every fair and 

rational hypothesis except that of guilt.” Loving, 41 M.J. at 281. Honest, 

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 error as to ineffective assistance of 

counsel is moot.

III. CONCLUSION

 The findings of guilty and the sentence are set aside, and the charge and 

specification are dismissed.

Judge JONES concurs.

WOODARD, Judge dissenting:

I must respectfully disagree with 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. Additionally, 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 any 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 

communications 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 they remained in the living room where the victim studied and the 

appellant attempted to assemble a desk chair.3 Nothing 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 and 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, shorts, and 

underwear.

4 Although the victim did not claim to have ever laid any ground 

rules about not having sexual intercourse or engaging in other sexual acts 

that night, this question was never posed to her by the government, defense, 

or the court. 

During 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 benefit 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, 

understood, 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 hours—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 twohour gap in the evidence, my review of the record reveals no such gap.

The record reveals that there are two opposing versions of what occurred 

during this time period. First we have the account the victim presented in 

court, subject to the crucible of cross-examination. The victim testified that 

following 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 crossexamination the victim reconfirmed 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 what 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. 

Although 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 misconstrues 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 appellant, 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 completely 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

resisted the appellant’s efforts by pushing him away with her hands, but he 

then forcefully held her hands above her head, kissed and bit her neck, and

attempted 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 responded—

“[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 wasn’t going to happen.”

17 She explained how, throughout this final 

assault, she told the appellant, in a variety of ways, “no—30 to 40 times,”

18

 

12 Record at 65.

13 Id. The 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 penetrate 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 explained 

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 “froze”—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 sexual assault in this court-martial ended here, we would have “no 

insight as to whether appellant actually or subjectively did infer consent 

based on these circumstances” of the evening leading up to the sexual 

intercourse. United States v. Willis, 41 M.J. 435, 438 (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 

recognize 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 trying 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 the 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 was 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. However, unlike the majority, I find the government has met 

its burden.

Although the appellant’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 belief 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 the 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 verbally 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 initially 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 consent 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 waves25—“[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 7:15
United 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 first instance occurred after the 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 you?

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.29

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 appellant’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 that 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 Record 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. That 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 you 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 different 

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 

somebody 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 voice 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 argue 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 majority 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 to 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 and 

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 had

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. 

What 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 victim repeatedly 

expressed her lack of consent through her words and resistive conduct. The 

appellant chose to ignore these repeated verbal and unrebutted physical 

expressions of non-consent. He was singularly focused on engaging in sexual 

intercourse regardless 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 received 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. Considering 

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. The 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 sexually pursuing the 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. TROIDL

Clerk of Court