United States v. Goldwire

55 M.J. 139 (2001)

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Nature of the Case

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Facts

D and two of his friends invited Airman K, the female victim of the rape, to attend a party at an off-base apartment. Airman K had never spoken to D before that night. Nevertheless, she agreed to attend the party because she thought it would be fun. Airman K met D and his friends to accompany them to the party. Their plan was 'to go to the apartment and drink.' The group stopped at a liquor store where Airman K bought beer, a bottle of vodka, and orange juice. The party started that morning and continued throughout the day. Airman K went to Taco Bell for lunch with D. On the way back, they stopped at a second liquor store and purchased more alcoholic beverages for the party. The in-party activities consisted of drinking, listening to the radio, and playing cards and dominoes. D became very intoxicated, to the point of becoming ill. Airman K and Airman B found D lying on the bathroom floor and helped him into the bedroom. By evening, Airman B, Airman M, Airman K, and D remained at the apartment. Airman B and Airman K began to play a drinking game while Airman M watched. During the game, Airman K consumed orange juice and vodka. After the game, Airman K sat at one end of the couch with Airman M at the other end, and Airman B sat in a chair. The three airmen fell asleep. Airman K testified that the next thing she remembered was waking up on the bed in the bedroom with D on top of her. She was naked from the waist down, and her shirt and bra were pushed above her breasts. D's legs were on top of hers, and his hands were at either side of her waist. She attempted to push [D away when someone grabbed her wrists and pulled her arms back against the bed. She started fighting and screaming and telling D to stop, and that is when D started having sex with her. D had sex with her for about a minute while she was telling him to get off of her and let her go. She pushed D and he jumped off the bed. Airman K got off the bed and put on some pants that were on the floor. D tried to block her from leaving the room, but she hit him and got outside. She headed for the guard shack with D trying to get her to come back to the apartment. Someone stopped and gave Airman K a ride back to her squadron. Airman K was taken to the emergency room at the base hospital, where a test taken showed her blood-alcohol level to be .142. Airman B testified under a grant of immunity. D did not testify at trial. Special Agent Phillips was called and testified that following a rights advisement, D gave an oral statement and admitted having sexual intercourse with Airman K. D also stated that prior to having sex with him, Airman K had not said anything, and her eyes were closed. However, he claimed there were a couple of times when his penis came out of Airman K's vagina and she reinserted it. D established that a number of facts contained in D's statement were consistent with a consensual act of intercourse: Airman K was not so intoxicated that she could not participate in foreplay; Airman K rubbed the back of D's neck prior to sexual intercourse; twice she asked D to stop and he did stop; and D told Agent Phillips that when they completed having sexual intercourse, they talked. The military judge permitted Dt's first sergeant, Master Sergeant (MSgt) Green, to offer his opinion of D's character for truthfulness. The judge gave a cautionary instruction that Green’s opinion was based solely on one instance where the accused lied to a detail supervisor about his whereabouts. D contends on cross-examination of Agent Phillips D was merely exercising his rights under the rule of completeness. D contends this did not put his credibility in issue, and the admission of Green's opinion regarding D's character for truthfulness was improper. D argues that the probative value of Green's opinion was far outweighed by the danger of unfair prejudice. D argues that even if such character evidence was admissible, his first sergeant lacked an adequate foundation to offer an opinion as to Ds character for truthfulness. P must show that the character witness personally knows the witness and is acquainted with the witness well enough to have had an opportunity to form an opinion of the witness' character for truthfulness. D was convicted and appealed.