UNITED STATES, Appellee 

v. 

Kenneth L. GOODMAN, Specialist 

U.S. Army, Appellant 

No. 11-0389 

Crim. App. No. 20090083 

United States Court of Appeals for the Armed Forces

Argued October 12, 2011 

Decided December 8, 2011 

STUCKY, J., delivered the opinion of the Court, in which BAKER, 

C.J., RYAN, J., and EFFRON, S.J., joined. ERDMANN, J., filed a 

separate opinion concurring in part and dissenting in part. 

Counsel

For Appellant: Major Richard E. Gorini (argued); Lieutenant 

Colonel Imogene Jamison, Lieutenant Colonel Norman R. Zamboni, 

and Captain E. Patrick Gilman (on brief); Colonel Patricia A. 

Ham and Colonel Mark Tellitocci. 

For Appellee: Captain Bradley M. Endicott (argued); Colonel 

Michael E. Mulligan, Major Ellen S. Jennings, and Major Amber J. 

Williams (on brief). 

Military Judge: Michael J. Hargis 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Goodman, No. 11-0389/AR 

2

 Judge STUCKY delivered the opinion of the Court. 

 We granted review to determine whether the failure of the 

military judge to advise Appellant of the mistake of fact 

defense and secure his disclaimer of the defense requires us to 

set aside his guilty plea. We specified an additional issue, 

without briefs: Whether the specifications alleging indecent 

exposure and bigamy under Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2006), failed to state 

offenses. We hold that the military judge did not err and 

Appellant did not raise matters inconsistent with his guilty 

plea: Appellant’s statements during the plea inquiry did not 

raise a mistake of fact defense. Nevertheless, we remand the 

case to the United States Army Court of Criminal Appeals (CCA) 

to determine whether, in light of United States v. Fosler, 70 

M.J. 225 (C.A.A.F. 2011), the specifications alleging indecent 

exposure and bigamy, which do not expressly allege terminal 

elements, state offenses. 

I. 

 In exchange for the convening authority’s agreement not to 

approve a sentence to confinement in excess of twenty months, 

Appellant pled guilty to failing to obey a lawful general order 

by sexually harassing a female solider, maltreating a different 

female soldier by sexually harassing her, making a false 

official statement, indecent exposure, and bigamy. Articles 92, 
United States v. Goodman, No. 11-0389/AR 

3

93, 107, and 134, UCMJ, 10 U.S.C. §§ 892, 893, 907, 934 (2006). 

Contrary to Appellant’s pleas, the military judge convicted him 

of wrongful sexual contact. Article 120, UCMJ, 10 U.S.C. § 920 

(2006). The military judge sentenced Appellant to a bad-conduct 

discharge, confinement for twelve months, and reduction to the 

lowest enlisted grade. The convening authority reduced the term 

of confinement to eleven months but otherwise approved the 

sentence. The CCA affirmed in a summary disposition. United 

States v. Goodman, No. 20090083 (A. Ct. Crim. App. Jan. 21, 

2011) (per curiam). 

II. 

A. 

 In the specification of Charge I, Appellant, a twentyseven-year-old MP, was charged with violating Dep’t of the Army, 

Reg. 600-20, Army Command Policy (June 7, 2006), by sexually 

harassing Private First Class (PFC) L. The regulation provides 

as follows: “The policy of the Army is that sexual harassment 

is unacceptable conduct and will not be tolerated.” Id. ¶ 7–3.a. 

Sexual harassment is a form of gender discrimination 

that involves unwelcomed sexual advances, requests for 

sexual favors, and other verbal or physical conduct of 

a sexual nature between the same or opposite genders 

when -- 

(1) Submission to, or rejection of, such conduct is 

made either explicitly or implicitly a term or 

condition of a person’s job, pay, career, or 
United States v. Goodman, No. 11-0389/AR 

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(2) Submission to, or rejection of, such conduct by a 

person is used as a basis for career or employment 

decisions affecting that person, or 

(3) Such conduct has the purpose or effect of 

unreasonably interfering with an individual’s work 

performance or creates an intimidating, hostile, or 

offensive working environment. 

Id. ¶ 7–4.a. “[A]ny Soldier or civilian employee who makes 

deliberate or repeated unwelcome verbal comments, gestures, or 

physical contact of a sexual nature is engaging in sexual 

harassment.” Id. ¶ 7–4.b. “A hostile environment occurs when 

Soldiers or civilians are subjected to offensive, unwanted and 

unsolicited comments, or behaviors of a sexual nature.” 

Id. ¶ 7–6.b. 

B. 

 The military judge advised Appellant of the following 

elements of the offense: 

 First, that there was in existence a certain 

lawful general regulation in the following terms: 

 Army Regulation 600-20, dated 7 June 2006, which 

prohibits sexual harassment or words to that effect. 

 Second, that you had a duty to obey such 

regulation; and 

 Third, at or near Fort Bliss, Texas, on divers 

occasions, between on or about 12 January 2008 and 12 

February 2008, you violated this lawful general 

regulation by sexually harassing PFC [L]. 

 The military judge then defined “sexual harassment” as 

including “influencing, offering to influence, or threatening 
United States v. Goodman, No. 11-0389/AR 

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the career, pay, or job of another person in exchange for sexual 

favors. Sexual harassment also includes deliberate or repeated 

offensive comments or gestures of a sexual nature.” 

 During the plea inquiry that followed, Appellant told the 

military judge that he had been given sexual harassment training 

several times and knew that sexual harassment was “a no-go in 

the Army.” He stated that he had made sexually charged comments 

to PFC L that were “against Article 92.” Appellant admitted 

asking PFC L when they were going to have sex and “about shaving 

her genitalia.” When asked if that was the “normal type of 

banter between the two of you,” Appellant answered that it was. 

Appellant further told the military judge that, on each of the 

four to six occasions that he had made comments of a sexual 

nature to PFC L, she responded in a similar fashion. Appellant 

did not think PFC L was taking offense with his comments until 

later when she stopped talking to him and reported the comments 

to military authorities. 

 Based on Appellant’s comments, the military judge expressed 

concern about accepting his guilty pleas. The defense counsel 

asked the military judge to focus his questions on the charged 

time period after the date Appellant was alleged to have had 

wrongful sexual contact with PFC L. After that alleged touching 

incident, Appellant’s noncommissioned officers told him that his 

banter was inappropriate and he was given a no-contact order. 
United States v. Goodman, No. 11-0389/AR 

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Appellant stated that he did not attempt sexual banter with PFC 

L thereafter, but believed that, 

due to the fact that she was new in the unit, I -- I 

guess I intimidated her and she -- when soldiers get 

to the unit, they are very, um -- what’s the word I’m 

looking for? They don’t wanna stand down to anyone. 

They just go along with the -- the -- the routine, and 

she didn’t wanna -- I guess she didn’t wanna seem as 

though to offend me, but I’m pretty sure I made her 

feel uncomfortable, sir. 

Appellant’s first sergeant told him that PFC L found his 

comments to be inappropriate and offensive from the beginning, 

her comments notwithstanding. Appellant opined that PFC L’s 

“comments were a -- [I] guess a defense mechanism.” 

 Appellant acknowledged that he had never met PFC L before 

she arrived in the unit, but he had heard “her reputation from 

Korea . . . was that she was very promiscuous.” He admitted 

that the conversations he had with PFC L were not professional. 

She was friendly toward him and on one occasion had hugged him. 

He “got the vibe that she was interested” in him, so he “tested 

the waters to, like, see if I -- could it go anywhere from 

there.” “Sir, she was trying to be friendly and I turned it 

sexual in nature.” Appellant initiated the comments of a sexual 

nature. When again asked how PFC L had responded to his 

comments, Appellant said, “As I’ve previously stated, sir, I 

think she did it as a defense mechanism.” 
United States v. Goodman, No. 11-0389/AR 

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 Summarizing, the military judge asked Appellant if “in 

hindsight, . . . [Appellant] interpret[ed] her comments back to 

[him] to be a defense mechanism” and thought PFC L’s comments 

were meant to deflect Appellant’s comments. Appellant agreed 

and admitted that his comments created a hostile work 

environment and made it difficult for her to do her job without 

feeling uncomfortable. 

III. 

 Appellant asserts that his statements during the plea 

inquiry -- that he thought his comments to PFC L were welcomed 

 -- raised the issue of mistake of fact, that because the 

military judge failed to secure a disclaimer of the defense an 

inconsistency in his guilty plea was unresolved, and therefore, 

his conviction should be set aside. 

A. 

 During a guilty plea inquiry, the accused must establish 

not only that he believes he is guilty but also that the factual 

circumstances support that plea. United States v. Garcia, 44 

M.J. 496, 497 (C.A.A.F. 1996). “If an accused ‘sets up matter 

inconsistent with the plea’ at any time during the proceeding, 

the military judge must either resolve the apparent 

inconsistency or reject the plea.” Id. at 498 (quoting Article 

45(a), UCMJ, 10 U.S.C. § 845(a)), quoted in United States v. 

Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006). “Once a military 
United States v. Goodman, No. 11-0389/AR 

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judge has accepted an accused’s guilty pleas and entered 

findings of guilty, this Court will not set them aside unless we 

find a substantial basis in law or fact for questioning the 

plea.” United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 

2009) (citing United States v. Inabinette, 66 M.J. 320, 322 

(C.A.A.F. 2008)); see Article 45(a), UCMJ, 10 U.S.C. § 845(a) 

(2006). 

 To rise to the level of inconsistency contemplated by 

Article 45(a), matters raised at trial must have reasonably 

raised the question of a defense or must have been inconsistent 

with the plea in some respect. United States v. Roane, 43 M.J. 

93, 98 (C.A.A.F. 1995). In determining on appeal whether there 

is a substantial inconsistency, this Court considers the “full 

context” of the plea inquiry, including Appellant’s stipulation 

of fact. United States v. Smauley, 42 M.J. 449, 452 (C.A.A.F. 

1995). 

B. 

 Mistake of fact is a special defense. It “is a defense 

when it negatives the existence of a mental state essential to 

the crime charged.” 1 Wayne R. LaFave, Substantive Criminal Law

§ 5.6(a), at 395 (2d ed. 2003); see United States v. Wilson, 66 

M.J. 39, 40 (C.A.A.F. 2008). In other words, an accused may not 

be “convicted when it is shown that he does not have the mental 
United States v. Goodman, No. 11-0389/AR 

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state required by law for commission of that particular 

offense.” 1 LaFave, supra, § 5.6(a), at 395. 

If the ignorance or mistake goes to an element 

requiring premeditation, specific intent, willfulness, 

or knowledge of a particular fact, the ignorance or 

mistake need only have existed in the mind of the 

accused. If the ignorance or mistake goes to any 

other element requiring only general 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. 

Rule for Courts-Martial 916(j)(1). 

IV. 

 “Because the violation of a general regulation is a 

general-intent offense, mistake of fact is not a defense unless 

the mistake is both honest and reasonable.” United States v. 

Brown, 22 M.J. 448, 451 (C.M.A. 1986). The honest belief prong 

is subjective, while the reasonableness prong is objective. See 

United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995). 

 While Appellant indicated that he may have subjectively 

believed that his comments were welcome, nothing in the record 

supports the reasonableness of such a belief. Appellant 

outranked PFC L; he was an E-4 while she was an E-3. He was 

tasked with in-processing her into her new unit. Appellant 

admitted that, despite his previous training on sexual 

harassment, he initiated the sexual banter -- turning her 

attempts at being friendly into something of a sexual nature, 

although she did not do or say “anything . . . that led [him] to 
United States v. Goodman, No. 11-0389/AR 

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believe that she would be receptive to these types of sexually 

charged comments.” Appellant admitted that his comments 

“created a very hostile work environment” that made it difficult 

for PFC L to perform her duties. Appellant knew his comments 

were likely to bring offense. He made them deliberately, in an 

attempt to find a woman who would be willing to engage in sex 

with him. Appellant’s admissions to the military judge were 

consistent with his stipulation of fact in which he admitted 

inserting sexually charged comments into his conversations with 

PFC L. 

 In analyzing Appellant’s case, we should keep in mind Judge 

Cox’s admonition not to 

overlook human nature as we go about the business of 

justice. One aspect of human beings is that we 

rationalize our behavior and, although sometimes the 

rationalization is “inconsistent with the plea,” more 

often than not it is an effort by the accused to 

justify his misbehavior. 

 A good trial judge can usually sort out the 

guilty plea and determine if an accused is so pleading 

because he has committed the offense charged. 

United States v. Penister, 25 M.J. 148, 153 (C.M.A. 1987) (Cox, 

J., concurring). The military judge recognized Appellant’s 

rationalization and inquired further into the plea. 

 Appellant’s testimony did not raise a mistake of fact 

defense or an inconsistency with regard to his guilty plea. 
United States v. Goodman, No. 11-0389/AR 

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There is no substantial basis in either law or fact to question 

the plea. See Garcia, 44 M.J. at 498-99. 

V. 

 We affirm the judgment of the United States Army Court of 

Criminal Appeals as to Appellant’s convictions for wrongful 

sexual contact, failing to obey a lawful general order, 

maltreatment, and making a false official statement. We set 

aside that part of the judgment affirming Appellant’s 

convictions for indecent exposure and bigamy under Article 134, 

and the sentence, and return the case to the Judge Advocate 

General of the Army for remand to the United States Army Court 

of Criminal Appeals for consideration in light of our opinion in 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). 
United States v. Goodman, No. 11-0389/AR 

ERDMANN, Judge (dissenting in part and concurring in part): 

While I concur with the majority’s disposition of the 

specified Fosler issue, I respectfully dissent from the 

majority’s conclusion as to the granted issue. Goodman’s 

statements during the plea inquiry raised the possibility of a 

defense of mistake of fact. The military judge attempted to 

resolve the conflict but failed to do so, and then failed to 

explain the defense of mistake of fact and obtain a disclaimer. 

I would therefore reverse the decision of the United States Army 

Court of Criminal Appeals and set aside the findings of guilty 

to Charge I and its specification. 

 “Once a military judge has accepted a plea as provident and 

has entered findings based on it, this Court will not reverse 

that finding and reject the plea unless it finds a substantial 

conflict between the plea and the accused’s statements or other 

evidence on the record.” United States v. Phillippe, 63 M.J. 

307, 309 (C.A.A.F. 2006). This court applies “the substantial 

basis test, looking at whether there is something in the record 

of trial, with regard to the factual basis or the law, that 

would raise a substantial question regarding the appellant’s 

guilty plea.” United States v. Inabinette, 60 M.J. 320, 322 

(C.A.A.F. 2008). 

Dep’t of the Army, Reg. 600-20, Personnel-General, Army 

Command Policy (June 7, 2006) [Army Regulation], prohibits 
United States v. Goodman, No. 11-0389/AR 

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sexual harassment in the Army. The regulation in effect at the 

time defined and provided examples of “sexual harassment.” Id.

at paras. 7-4 - 7-6. Goodman was charged under Article 92, 

UCMJ, 10 U.S.C. § 892 (2006), with failing to obey Army 

Regulation 600-20 by “wrongfully sexually harassing [NL].” In 

order to be guilty of the charged violation, Goodman’s sexually 

charged comments must have been either “unwelcomed” or “unwanted 

and unsolicited” and “ha[d] the purpose or effect of 

unreasonably interfering with [NL’s] work performance or 

create[d] an intimidating, hostile, or offensive working 

environment.”1 Id. at paras. 7-4a(3), 7-6b. 

Rule for Court-Martial 916(j) provides for the defense of 

mistake of fact -- 

[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. If the 

ignorance or mistake goes to an element requiring 

premeditation, specific intent, willfulness, or 

knowledge of a particular fact, the ignorance or 

mistake need only have existed in the mind of the 

accused. If the ignorance or mistake goes to any 

 

1

 Sexual harassment is unacceptable in the workplace and is 

widely prohibited at both the state and federal levels 

throughout the United States. The military, however, is one of 

the few, if not only, places where workplace sexual harassment 

(not rising to sexual criminal offenses such as sexual assault 

or rape) can constitute criminal conduct. Given this shift from 

an employment violation to a federal criminal violation, I 

believe that we must carefully scrutinize offenses which 

criminalize conduct that would not be criminal in the civilian 

world. 
United States v. Goodman, No. 11-0389/AR 

3

other element requiring only general intent or 

knowledge, the ignorance or mistake must have existed 

in the mind of the accused and must have been 

reasonable under the circumstances. 

“Because the violation of a general regulation is a 

general-intent offense, mistake of fact is not a defense unless 

the mistake is both honest and reasonable.” United States v. 

Brown, 22 M.J. 448, 451 (C.M.A. 1986). The issue here is 

whether Goodman’s statements during the providence inquiry 

raised the possibility of a defense of mistake of fact and, if 

so, whether the subsequent inquiry by the military judge 

adequately resolved whether those statements were inconsistent 

with Goodman’s guilty plea. To raise the possibility of a 

defense of mistake of fact, Goodman must have subjectively 

believed that his conduct was not unwelcome and there must be 

some evidence that his honest belief was objectively reasonable 

under the circumstances. See United States v. Garcia, 44 M.J. 

496, 498 (C.A.A.F. 1996). 

During the providence inquiry Goodman stated that NL’s 

conduct in combination with her reciprocal banter to his 

“sexually charged” comments gave him “the vibe that she was 

interested” and that “at the time” it did not strike him that NL 

was taking offense with his comments. These initial statements 

reflected Goodman’s subjective belief that at the time of the 

offense, his comments to NL were not unwelcome. Moreover, 
United States v. Goodman, No. 11-0389/AR 

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contrary to the majority’s assertion that “nothing in the record 

supports the reasonableness of such a belief,” Goodman’s 

description of NL’s conduct and the fact that she responded to 

his comments with similar “sexually charged” comments provided 

some evidence that Goodman’s subjective belief was objectively 

reasonable under the circumstances. When asked by the military 

judge if NL had told him at any time that he should “‘Knock it 

off’ or words to that effect,” Goodman responded that she had 

not.2

 

At that point the military judge was required to either 

further inquire to clarify that the statements were not 

inconsistent with his plea or explain the defense of mistake of 

fact and obtain a disclaimer of the defense. Phillippe, 63 M.J. 

at 309. The military judge properly indicated that he was 

having “some difficulty” with the plea and after Goodman 

conferred with his defense counsel, the military judge conducted 

a further inquiry. 

During the additional inquiry, the military judge asked 

Goodman if at any point NL had told him, “‘I find this sexually 

charged banter to be inappropriate or offensive.’” Goodman 

 

2

 There is no requirement under the regulation that a victim 

inform an accused that his/her statements or conduct is 

unwelcome for an accused to believe that the statements or 

conduct is unwelcome. However, the lack of such a statement 

linked to a victim’s active participation in the sexual banter 

can reasonably indicate receptiveness to the conduct. 
United States v. Goodman, No. 11-0389/AR 

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responded that he had been informed that NL found the comments 

to be inappropriate and offensive when he met with his first 

sergeant after NL had filed a complaint against him after the 

incident that formed the basis for the wrongful sexual contact 

offense. Later in the inquiry the military judge again asked 

whether it was conveyed to him that NL was offended by the 

comments. Goodman responded, “Yes. Later on it was conveyed to 

me that she was offended by what I was saying.” The military 

judge then asked, “And now in hindsight, am I correct in hearing 

from you that you interpret her comments back to you to be a 

defense mechanism?” (Emphasis added.) Goodman responded, “Yes, 

sir.” 

At no point during the additional inquiry did Goodman admit 

or agree that at the time of the conversations he was aware that 

NL found his comments unwelcome or that it was unreasonable for 

him to subjectively believe his comments were welcome. In other 

words, Goodman never disavowed that he subjectively believed at 

the time that his comments were welcome nor did he admit that 

his subjective belief was objectively unreasonable under the 

circumstances. Having failed to resolve the conflict between 

Goodman’s guilty plea and his mistaken belief at the time that 

his comments were not unwelcome, the military judge was required 

to explain the defense of mistake of fact and attempt to obtain 

a disclaimer of the defense. As the military judge neither 
United States v. Goodman, No. 11-0389/AR 

6

resolved the conflict nor explained the defense of mistake of 

fact and obtained a disclaimer, this unresolved conflict results 

in a substantial basis to question Goodman’s guilty plea to 

Charge I and its specification. 

Accordingly, I would reverse the decision of the United 

States Army Court of Criminal Appeals and set aside the findings 

of guilty to Charge I and its specification.