Court of Appeals for the Armed Forces

United States v. Thompson is the first opinion of the new season. Judge Maggs writes for a unanimous court (with Senior Judge Erdmann sitting in the fifth chair).

Appellant argues that the United States Air Force Court of Criminal Appeals (AFCCA) erred in affirming a judgment that he sexually assaulted a fifteen-year-old girl. Appellant asserts the AFCCA erred in conducting its factual sufficiency review by requiring him to prove his mistake of fact defense with “direct evidence.” We agree that certain language in the AFCCA’s opinion supports Appellant’s argument. We therefore set aside the AFCCA’s decision and remand the case for a new factual sufficiency review.

AFCCA's unpublished opinion is here. While noting AFCCA's description of the legal rules "at length" relating to factual sufficiency, Judge Maggs then goes on to say (and quote AFCCA)

The AFCCA then summarized the evidence that “Appellant could have had a reasonable belief VP was at least 16” as follows:

     The record shows that VP consistently held herself out to be at least 16 years old to individuals she was meeting on various social media platforms and cell phone dating applications. While there is no discussion of VP’s actual age in the [electronic] messages Appellant and VP exchanged between 28 March 2019 and 30 May 2019, there are numerous examples in the record which would support the reasonableness of a belief that VP was over the age of 16: the references on VP’s Bumble account to being 18 years old and being an “undergrad;” VP stating she was drinking alcohol while messaging Appellant; VP talking about relationships with other, older men; VP’s mention of consuming “edibles” (presumably drugs); VP purportedly taking a college class; and VP leaving Italy to go to London and Germany for weeks at a time when someone under 18 years old would presumably have been in school.

Despite this evidence, the AFCCA concluded that Appellant had not proved his mistake of fact defense, explaining:

     Under all of the circumstances, although there was plenty of evidence for one to conclude that Appellant could have had a reasonable belief VP was at least 16, there was no direct evidence that this belief existed in Appellant’s mind. Even Appellant acknowledges this on appeal, noting that “there is no direct evidence that shows [he] ever knew her real age during the time period between 30 March 2019 and 30 May 2019. Rather, there is only evidence about [his] conduct.” We agree with this assessment, and as such, the Defense failed to meet its burden to demonstrate by a preponderance of the evidence that a mistake of fact actually existed in Appellant’s mind every time he had sex with VP.

Emphasis in the original. Judge Maggs then discusses the law applicable to the unusual situation of CAAF reviewing a CCAs factual sufficiency analysis. He then notes that a mistake of fact defense must be shown by a preponderance of the evidence. And then reasserts the well known rule that an accused need not testify to put the defense in issue and that relevant evidence 

can come from evidence presented by the defense, the prosecution, or the court-martial. No precedent of this Court has ever required proof by “direct” evidence nor restricted the proof to “direct” evidence. Either such holding would contradict R.C.M. 918(c), which provides that “[f]indings may be based on direct or circumstantial evidence.”

Here is where the AFCCA's word choice created "at least “an open question” about whether the court applied the correct rule."

We would not question the AFCCA’s understanding of the applicable legal rules if the AFCCA had merely expressed an observation about whether the record contained direct evidence to support Appellant’s mistake of fact defense. The CCAs often summarize the content and nature of relevant evidence when conducting a factual sufficiency review. See, e.g., United States v. Mitchell, No. ARMY 9601800, 1998 CCA LEXIS 595, at *4-5, 1998 WL 35319989, at *2 (A. Ct. Crim. App. Dec. 28, 1998) (observing that there was “no direct evidence, and only speculative circumstantial evidence” to support a finding of guilt). Such summaries are helpful to anyone reading CCA opinions. But in this case, the AFCCA appears to have gone beyond merely noting a lack of direct evidence. Instead, the AFCCA twice stated that there was no direct evidence to support the mistake of fact defense and then said “and as such, the Defense failed to meet its burden.” Thompson, 2021 CCA LEXIS 641, at *23-24, 2021 WL 5570291, at *8. The AFCCA’s use of the phrase “and as such” leaves the impression that the AFCCA rested its decision on an erroneous view that the mistake of fact defense required direct evidence.

The case is remanded for a new review.