Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

The court found that the military judge erred in failing to sua sponte instruct on the affirmative defense of consent.

A military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised. United States v. Davis , 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d) and 920(e)(3). “The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.” Davis, 53 M.J. at 205 (citation omitted).

Davis was also a Navy case involving the defense of accident and failure to instruct on an LIO.

NMCCA agreed with appellant that the affirmative defense of mistake of fact as to consent was “reasonably raised.”

Moreover, any doubt as to whether the evidence raises an affirmative defense is [to be] resolved in favor of the accused. United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

Steinruck (Army) involved an affirmative defense of “Agency,” (It is well established that one who acts in a transaction as a procuring agent is not a seller to that person.).

Applying the harmless error standard the NMCCA affirmed the conviction.

Finally, we note that mistake of fact as to consent was not a theory presented or argued to the members by trial defense counsel. Based on these facts and our review of the entire record, we find that the military judge’s error did not contribute to the appellant’s conviction.

The prosecution had argued two theories: a rape, or rape after the appellant was well aware that his wife had told him to stop but he continued with the sex. Apparently these facts as well as the ‘evidence’ of mistake were contained in an NCIS statement. It does not appear the appellant testified. Remember, an accused does not have to testify in order to present a defense, argue a defense, or ask for an instruction on an affirmative defense. Of course the quality of the evidence may be different. But the point I want to make is a client need not testify to get an instruction.

Oddly the NMCCA found the error may have contributed to the sentence. But they applied United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Morffeit, 63 M.J. 40 (C.A.A.F. 2006), and also affirmed the sentence of a DD, TF, three years, and E-1.

Morffeit questioned the proper factors, standards, and ability to reassess a sentence under Sales.

Whether assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928, of which the appellant was convicted, is a lesser included offense of the charged Rape by Use of Physical Violence in violation of Article 120, UCMJ, 10 U.S.C. § 920, if the proof does not show the assault is the alleged act of physical violence that compelled sexual intercourse.1

The footnote is:

Although specification 2 of the Charge alleges rape by physical violence such that the victim could not escape, the government theory appears to be aggravated sexual assault based on victim incapacitation. (Record 51, 453) This view of the proof is consistent with both the recommendations of the investigating officer and the trial testimony of the victim that the assault (a slap) was simply an act that awoke an unconscious victim rather than an act of force which compelled sexual intercourse. (Record 64-65, 72; Investigating Officer’s Report, Item 21, paragraph c(2)(b)) Although neither side in this judge alone trial requested consideration of any lesser included offenses on this specification of the charge, the military judge sua sponte found the appellant guilty of simple assault consummated by a battery under Article 128. (Record 448, 477-78) We particularly invite the parties’ views on the constitutional due process notice requirements necessary for conviction of a lesser included offense. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).