                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Bobby HIBBARD, Chief Master Sergeant
                        U.S. Air Force, Appellant

                                     No. 02-0231
                              Crim. App. No. 34371

        United States Court of Appeals for the Armed Forces

                            Argued November 5, 2002

                           Decided February 6, 2003

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.


                                        Counsel

For Appellant: Lieutenant Colonel Robin S. Wink (argued); Lieutenant Colonel
     Beverly B. Knott, Major Patricia A. McHugh, and Major Jeffrey A. Vires
     (on brief).



For Appellee: Lieutenant Colonel LeEllen Coacher (argued); Lieutenant
     Colonel Lance B. Sigmon and Major Jennifer R. Rider (on brief).



Military Judge:   Michael J. Rollinger




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hibbard, No. 02-0231/AF




   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one specification

each of maltreatment, rape, indecent assault, and making a false

official statement, and two specifications alleging dereliction

of duty, in violation of Articles 93, 120, 134, 107 and 92,

Uniform Code of Military Justice [hereinafter UCMJ] 10 USC §§

893, 920, 934, 907, and 892 (2002), respectively.   He was

sentenced to confinement for four years and reduction to pay

grade E-4.   The convening authority approved the findings and

approved a sentence of confinement for two years and reduction

to pay grade E-4.   The Court of Criminal Appeals affirmed in an

unpublished opinion.

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE MILITARY JUDGE ERRED IN REFUSING
          TO INSTRUCT THE MEMBERS ON THE DEFENSE OF
          MISTAKE OF FACT AS TO THE COMPLAINANT'S
          CONSENT AS RELATED TO THE OFFENSE OF RAPE IN
          THE SPECIFICATION OF CHARGE II.

For the reasons stated below, we hold that the military judge

did not err when he declined to instruct the panel of members on

the defense of mistake of fact.




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                            I.   BACKGROUND

                  A.    The Mistake of Fact Defense

     When an accused is charged with a crime in which knowledge

or intent is material as to an element, “it 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 be not guilty of the offense.”      Rule for

Courts-Martial 916(j) [hereinafter R.C.M.].     If the accused is

charged with a general intent offense such as rape, “the

ignorance or mistake must have existed in the mind of the

accused and must have been reasonable under all the

circumstances.”   Id.

     Rape is a general intent offense requiring proof that an

accused deliberately or purposefully committed an act of sexual

intercourse by force and without the victim’s consent.      See

Article 120(a); Manual for Courts-Martial, United States (2002

ed.) Part IV, para. 45.b.(1) [hereinafter MCM]; United States v.

Willis, 41 M.J. 435, 437 (C.A.A.F. 1995).     “[A]n honest and

reasonable mistake of fact as to the victim’s lack of consent”

is an affirmative defense to a charge of rape.     United States v.

True, 41 M.J. 424, 426 (C.A.A.F. 1995)(quoting United States v.

Taylor, 26 M.J. 127, 128 (C.M.A. 1988)).



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United States v. Hibbard, No. 02-0231/AF


     The military judge is required to instruct the court-

martial panel on the availability and legal requirements of an

affirmative defense, if “the record contains some evidence to

which the military jury may attach credit if it so desires.”

United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)

(quoting United States v. Simmelkjaer, 18 C.M.A. 406, 410, 40

C.M.R. 118, 122 (1969)).   See R.C.M. 920(e)(3); United States v.

Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).   An affirmative defense

“may be raised by evidence presented by the defense, the

prosecution, or the court-martial.”   R.C.M. 916(b) discussion.

     The defense theory at trial and the nature of the evidence

presented by the defense are factors that may be considered in

determining whether the accused is entitled to a mistake of fact

instruction, but neither factor is dispositive.   See United

States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998); Taylor, 26 M.J.

at 131. “Any doubt whether an instruction `should be given

should be resolved in favor of the accused.´”   Brown, 43 M.J. at

189 (quoting United States v. Steinruck, 11 M.J. 322, 324

(C.M.A. 1981)).



                      B.   Appellant's Trial

     Appellant was prosecuted for a number of offenses,

including a charge that he raped Technical Sergeant (TSgt) W

while both were stationed in Saudi Arabia at Eskan Village.


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United States v. Hibbard, No. 02-0231/AF


Appellant’s defense at trial was that he did not engage in

sexual intercourse with TSgt W.


             1.   Defense Counsel's Opening Statement

     The central theme of defense counsel’s opening statement

was that Appellant did not engage in an act of sexual

intercourse with TSgt W.   In support of this approach, defense

counsel suggested the evidence would show that TSgt W had

fabricated the rape charge.   According to defense counsel, TSgt

W wanted a transfer from Saudi Arabia to the United States.     The

apparent implication was that she would receive more sympathetic

consideration as a rape victim.   Defense counsel indicated the

evidence would show that TSgt W had not wanted to leave her

family in Little Rock, Arkansas, where she had been stationed

for sixteen years, and that she decided to accuse Appellant of

rape after Staff Sergeant (SSgt) S told her about inappropriate

sexual advances by Appellant.   Defense counsel suggested the

evidence would show that TSgt W's motive to fabricate and the

lack of medical evidence would prove that no sexual intercourse

occurred.


                    2.   The Victim's Testimony

     TSGT W was the prosecution's primary witness.   She provided

the following testimony about her interaction with Appellant –

who was her first sergeant – in the brief period between her


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United States v. Hibbard, No. 02-0231/AF


arrival at Eskan Village and the incident leading to the rape

charge.

     During the two days following her arrival, Appellant

provided TSGT W with an orientation – showing her around the

base, including her in social functions, and introducing her to

other Air Force personnel.    In the course of these activities,

Appellant pointed out a private swimming pool, indicating that

he was allowed to bring one guest to the pool. He told her not

to tell anyone else about it.

     In the afternoon of her third day at the base, Appellant

called TSgt W into his office on four different occasions,

asking her each time to accompany him to the private pool that

night.    Although TSgt W repeatedly attempted to avoid giving a

direct answer, Appellant pressed her to join him, and she

eventually agreed to do so.    That evening, Appellant met TSgt W

at her room, telling her that they would first go to his

apartment so that he could change into his swimsuit.    At the

apartment, Appellant asked TSgt W to enter his room.    Because

she was reluctant to be alone with him, she declined to do so,

and remained in the hallway while he changed.

     When they arrived at the private pool, no one else was

present.    TSgt W hesitated because she did not want to be alone

with Appellant, but she was also concerned about acting in a

manner that would be perceived as insulting to her first


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United States v. Hibbard, No. 02-0231/AF


sergeant.    After Appellant prodded her, she eventually went into

the pool area, and they both entered the pool.     At the time she

entered the pool, she was wearing shorts over her swimsuit.

After the pockets filled with water, causing discomfort, she

removed the shorts that covered her swimsuit.     Over the period

of about an hour, Appellant and TSgt W swam and talked, spending

time in both the pool and a nearby hot tub.

       While in the hot tub, Appellant asked TSgt W if she trusted

him.    She replied that she did.   He began to rub her feet.    A

few seconds later, Appellant let go of her feet, stood up, and

“came at” her -- touching her breasts, buttocks, thighs, and

back.    After trying to kiss her, he pulled aside her swimsuit

and inserted his finger into her vagina.     According to TSgt W,

this initial contact lasted “a couple of seconds,” leaving her

in shock, unable to move or speak.

       Appellant then left the hot tub and spread out a towel on

the deck.    TSgt W told Appellant, “I can’t do this.”   She next

found herself on her back on the towel, but could not recall the

details of moving from the hot tub to the towel.     Appellant

pulled down his swim trunks and “came down on [her] really

fast,” leaving her able to move only her upper chest area and

head.    She struggled to turn her head back and forth to avoid

Appellant’s attempts to kiss her, which led him to say, “come




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United States v. Hibbard, No. 02-0231/AF


on, kiss me.”   Appellant then inserted his penis into TSgt W’s

vagina.

     TSgt W, who began to cry “really hard,” had difficulty

breathing.   Appellant asked TSgt W if she wanted him to stop,

and she nodded an affirmative response.       It is unclear whether

he saw her response, but he did not stop.       When she realized

that he was not stopping, she began to cry “even harder.”       He

again asked if she wanted him to stop, and TSgt W was able to

say that she wanted him to stop.       Appellant then ended the act

of sexual intercourse.

     After terminating the sexual activity, Appellant said: “You

are a beautiful woman and we are both adults.”       He asked her to

come back to his room with him.    She refused.     He said that he

wanted to get to know her better, and that she should “just let

what comes natural happen” next time.       He also said that she

need not worry because he had undergone a vasectomy.       As they

were preparing to leave, he added: “Well, at least this was

consensual.”


      3. Defense Counsel’s Cross-Examination of the Victim

     The cross-examination of TSgt W by defense counsel

emphasized the defense contention that Appellant did not engage

in sexual intercourse with TSgt W.       Defense counsel highlighted

inconsistencies between TSgt W’s testimony at trial and prior



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United States v. Hibbard, No. 02-0231/AF


statements she made to investigating authorities.    In addition,

defense counsel explored TSgt W’s unhappiness with having to

leave her family.    Defense counsel did not ask any questions on

cross-examination to explore or highlight a mistake of fact

defense.


                        4.   The Defense Case

     The defense case on the merits sought to bolster the

proposition that Appellant did not engage in sexual intercourse

with TSgt W.    Appellant did not seek to establish a mistake of

fact defense.    Defense counsel submitted twenty-three affidavits

and multiple witnesses attesting to Appellant’s good military

character, his law-abiding nature, and his character for

truthfulness.    A fellow first sergeant testified that

Appellant’s public interaction with TSgt W was neither

inappropriate or unusual.    Defense counsel attempted to

discredit SSgt S’s allegations of inappropriate sexual advances

by Appellant.    Defense counsel also introduced evidence that a

guard walked past Appellant and TSgt W while they were in the

hot tub, and that they had exchanged greetings.    Appellant did

not testify, and the defense did not present any other evidence

of a mistake of fact defense during its case-in-chief.




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United States v. Hibbard, No. 02-0231/AF


               5. The Request for Instructions and
                  Defense Counsel’s Closing Argument

     Prior to closing arguments, defense counsel moved for a

mistake of fact instruction.   Defense counsel’s argument in

favor of the instruction addressed TSgt W’s remarks and actions

towards Appellant, suggesting that the record was unclear as to

whether TSgt W “communicated her non-desire” to Appellant.

Defense counsel did not cite or rely upon that aspect of TSgt

W's testimony stating that after the act was completed,

Appellant said: “Well, at least this was consensual.”    Likewise,

defense counsel did not contend that TSgt W affirmatively had

indicated a desire to engage in sexual intercourse.    The

military judge denied the motion, taking note of TSgt W's

testimony that Appellant had rushed toward her, pinned her down,

left her in a state of shock, and did not ask if she wanted him

to desist until after the act of penetration.   The military

judge, observing that the mistake of fact defense requires both

an honest and a reasonable belief, held that there was not

enough evidence to warrant an instruction.   He specifically

relied upon TSgt W’s description of the incident and the defense

theory of the case, which he described as “blanket denials of

any kind of contact whatsoever[.]”

     Defense counsel’s closing argument concentrated on the

defense theory that Appellant had not engaged in sexual



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United States v. Hibbard, No. 02-0231/AF


intercourse with TSgt W.     Counsel did not ask the members to

consider that Appellant might have mistakenly believed that TSgt

W consented to sexual intercourse, but simply took note of the

Government’s burden to prove “lack of consent” and contended

that the Government could not do so beyond a reasonable doubt.



                           II. Discussion

     The issue of whether a jury was properly instructed is a

question of law, which we review de novo.    United States v.

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).    Even if not requested

by the defense, a military judge has a sua sponte duty to give

certain instructions when reasonably raised by the evidence,

including a defense instruction as to the affirmative mistake of

fact defense.   See id.; R.C.M. 920(e).

     In the present case, the military judge concluded, as a

matter of law, that there was insufficient evidence of a

reasonable and honest belief to require a mistake of fact

instruction.    The Court of Criminal Appeals suggested there was

some evidence that Appellant had an honest belief as to consent.

The court observed, however, that it was “difficult . . . to

imagine any court members attaching any credit” to the evidence.

United States v. Hibbard, No. ACM 34371, slip Op. at 5 (A.F. Ct.

Crim. App. Nov. 29, 2001).    The court concluded, as a matter of

law, that there was insufficient evidence of a reasonable belief


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United States v. Hibbard, No. 02-0231/AF


to require an instruction.   Id.    For the reasons set forth

below, it is appropriate to focus on the point of agreement

between the military judge and the Court of Criminal Appeals –

that the evidence did not reasonably raise the issue of whether

Appellant had a reasonable but mistaken belief as to consent.

Because we conclude that the military judge did not err in this

regard, we need not address aspects of the ruling by the

military judge or the opinion by the court below citing other

reasons for declining to give the instruction.

     On appeal, Appellant suggests that the following factors

support a mistake of fact instruction: (1) TSgt W willingly

accepted Appellant’s invitation to join him at night in a

private swimming pool; (2) she accepted a foot rub from

Appellant; (3) when Appellant engaged in sexual touching, she

did not tell him that she wanted him to stop; (4) they both got

out of the tub and laid down on a towel and had sexual

intercourse; (5) during intercourse, Appellant received “mixed

signals” in the form of heavy breathing and crying; and (6) when

he asked her after penetration if she wanted him to stop, he may

not have perceived her first response, but when he asked again

and she said “Yes” he stopped.     In addition, as noted by the

Court of Criminal Appeals, at the end of the incident appellant

said, “Well, at least this was consensual.” Id.




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United States v. Hibbard, No. 02-0231/AF


     The test for determining whether an affirmative defense of

mistake of fact has been raised is whether the record

contains some evidence of an honest and reasonable mistake to

which the members could have attached credit if they had so

desired.   R.C.M. 916(j); Davis, 53 M.J. at 205.   In the present

case, as noted above, our focus is limited to the “reasonable

mistake” prong of the test.   Therefore, in determining whether

the factors cited by Appellant reasonably raised the defense of

mistake of fact, we consider whether the record contains some

evidence of a reasonable mistake to which the members could have

attached credit if they had so desired.    In doing so, we

consider the totality of the circumstances at the time of the

offense.   Key circumstances in this case include: (1) the fact

that Appellant had a supervisory relationship with TSGT W, and a

responsibility to orient her to her new duty station; (2) his

use of the official duty environment to press her to join him at

the swimming pool that evening; (3) her manifest discomfort, as

reflected in her repeated efforts to avoid his invitation to

join him in the swimming pool, her unwillingness to enter his

apartment, and her hesitancy to enter the pool until prodded by

him; (4) his insistence that she respond to a question about

trust as a predicate for giving her a foot rub; (5) his sudden

rush at her, followed by aggressive sexual touching; (6) her

statement that this put her in a state of shock; (7) the absence


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United States v. Hibbard, No. 02-0231/AF


of any evidence that she responded positively to his aggressive

sexual touching; (8) her repeated attempts to avoid his kisses;

and (9) his use of his body weight to restrict her upper body

movements.

     In our consideration of whether a mistake of fact

instruction is required, we take into account the manner in

which the issue was litigated as well as the material introduced

into evidence at trial.   See, e.g., United States v. Peel, 29

M.J. 235 (C.M.A. 1989).

     As noted by the military judge in the present case, defense

counsel concentrated throughout the trial on the theory that

Appellant had not engaged in sexual intercourse with TSgt W.

Defense counsel steadfastly adhered to the theory of no sexual

intercourse in his opening statement, during his cross-

examination of TSgt W, in the presentation of defense evidence,

and in his closing argument.

     With respect to cross-examination, defense counsel’s

approach to the prosecution’s key witness, TSgt W, is

informative – particularly because Appellant, at trial and on

appeal, has relied on her testimony as the basis for the

instruction.   At best, TSGT W’s testimony described a situation

that the defense might have explored in greater detail to

reasonably raise a mistake of fact.   Such an approach, however,

would have entailed an element of risk, because the cross-


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United States v. Hibbard, No. 02-0231/AF


examination might have produced testimony that more firmly

demonstrated an absence of consent.   The fact that such an

approach would have been risky, however, does not mean that the

defense could leave the details unexplored and then expect to

receive a mistake of fact instruction.     Without such

exploration, TSGT W’s testimony did not describe a situation

that reasonably raised a mistake of fact as to her willingness

to engage in sexual intercourse.

     In the present case, defense counsel made no attempt on

cross-examination of TSgt W to explore and develop grounds for a

mistake of fact.   Instead, counsel used cross-examination to

highlight inconsistencies and establish motive in an attempt to

bolster his own theory that no sexual intercourse occurred.        See

Jones, 49 M.J. at 90.

     Although it is not necessary to present evidence of a

mistake of fact in the defense case on the merits or to discuss

such evidence in closing argument in order to obtain an

instruction in a proper case, see, e.g., United States v.

Sellers, 33 M.J. 364, 368 (C.M.A. 1991), it is appropriate for

an appellate court to take into account the absence of such a

presentation in assessing the significance of the evidence.     We

note that TSgt W’s testimony regarding Appellant’s remark     --

“Well, at least this was consensual” – was treated at trial as

an isolated remark unconnected to specific evidence of


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United States v. Hibbard, No. 02-0231/AF


Appellant’s understanding or intent.    Defense counsel did not

seek to connect it to any other evidence at trial, nor did

defense counsel seek through argument to suggest that the case

involved sexual intercourse which Appellant believed to be

consensual.    Although the defense presentation at trial is not

dispositive in determining what affirmative defenses have been

reasonably raised by the evidence, we may take into account the

absence of a mistake of fact approach from the defense case when

considering evidence such as TSGT W’s testimony about

Appellant’s parting remark.    See Taylor, 26 M.J. at 131.    In

that context, Appellant’s cursory parting remark    -- that “at

least” the act was consensual –- need not be viewed as anything

more than an after-the-fact attempt to recast unpleasant

circumstances in a favorable light.    Cf. United States v.

Buckley, 35 M.J. 262 (C.M.A. 1992)(appellant's remark to victim

that he thought she was awake did not raise mistake of fact as

to consent).

     In summary, the evidence cited by the defense in light of

the totality of the circumstances, including the manner that the

issue was litigated at trial, was insufficient to reasonably

raise the issue of whether Appellant had a reasonable belief

that TSgt W consented to sexual intercourse.




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United States v. Hibbard, No. 02-0231/AF


                           III. Conclusion

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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