United States v. Apilado

OPINION OF THE COURT ON RECONSIDERATION NAUGHTON, Senior Judge: Contrary to his pleas, the appellant was convicted by a general court-martial composed of officer and enlisted members of attempted rape and conspiracy to rape in violation of Articles 80 and 81, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 881 (1982) [hereinafter UCMJ]. The convening authority approved a sentence of a bad-conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to Private El. This Court initially affirmed the findings of guilty and the sentence on 12 September 1991. On 15 October 1991, we granted the appellant’s request for reconsideration based upon United States v. Langley, 33 M.J. 278 (C.M.A.1991), an opinion that examined the issue of mistake of fact instructions for the specific intent crime of assault with intent to commit rape. In an Opinion of the Court on Reconsideration dated 26 November 1991, we set aside the findings of guilty and sentence and authorized a rehearing. On 12 December 1991 government appellate counsel filed a Petition for Reconsideration and Suggestion for En Banc contending the opinion dated 26 November 1991, incorrectly applied the standards enunciated in Langley and erroneously set aside a charge that was not affected by the Langley decision. On 31 December 1991 this Court vacated the decision dated 26 November 1991 and granted the government’s Petition for Reconsideration, but did not adopt the Suggestion for En Banc reconsideration. Having again looked at the issue, we are convinced that the rule of stare decisis properly obligates this Court to follow the Court of Military Appeals decision in United States v. Langley, as the controlling precedent in resolving the instructional issue in the case at bar. Nevertheless, we respectfully urge the Court of Military Appeals to restrict the holding in Langley to an assault with intent to commit rape charge and to adopt Judge Johnston’s rationale regarding the appropriate instructional standard to be applied in an attempted rape case. In the case sub judice the military judge instructed the members that if the accused mistakenly believed that the victim consented to sexual intercourse, then he would not be guilty of attempted rape if his belief was reasonable. Upon reconsideration of the entire record, and in light of the decision of the court in United States v. Langley, we have determined that the military judge erred in instructing the members that the affirmative defense of mistake of fact in an attempted rape case requires an “honest and reasonable” belief rather than an “honest” belief that the victim consented to his actions. It is clear that the military judge has a sua sponte duty to fully and correctly instruct the members on affirmative defenses reasonably raised by the evidence. United States v. Taylor, 26 M.J. 127 (C.M.A.1988). Based on the facts of this case, including the possibility that the appellant waived the issue by agreeing at trial that the instruction required an “honest and reasonable” standard, and in light of part IV of the Langley decision, we are satisfied that the failure to correctly instruct on the defense was harmless error. We are convinced that, even if properly instructed upon, the members would have been no more ready to find the mistake honest than they were to find it honest and reasonable. See United States v. Langley, 33 M.J. 278, 283 (C.M.A.1991). Accordingly, the findings of guilty and the sentence are affirmed. Judge HOWELL concurs.