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Evans v. Horton

United States District Court, D. Kansas

December 3, 2018

MARK EVANS, Petitioner,
v.
CAROLINE HORTON, Colonel, United States Army Commandant, United States Disciplinary Barracks, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, U.S. DISTRICT JUDGE

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner seeks relief from his 2014 conviction by a general court-martial based upon the holding in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and upon unlawful command influence.

         Factual Background

          Petitioner was tried in April 2014 by a general court-martial composed of officer members at Ramstein Air Base, Germany. United States v. Evans, CCA Dkt. No. 38651 (A.F.Ct. Crim. App. 22 Oct. 2015). He was found guilty of rape, assault consummated by a battery, and obstruction of justice for crimes against a female German civilian and was found not guilty of attempted sexual assault and abusive sexual contact against a male co-worker.

         The Air Force Criminal Court of Appeals (AFCCA) summarized the case against petitioner as follows:

Appellant was a 27-year-old Security Forces member stationed in Thule, Greenland. The primary charges in this case arose while Appellant was on leave in Germany in early October 2013. He went to visit a friend, a female Security Forces member, who lived in a small German village near Spangdahlem Air Base, Germany. While there, Appellant went to a local Oktoberfest festival in the village. During the festival, Appellant met a 16-year-old local girl, YB, and, toward the end of the evening, had sex with her on the side of the driveway leading away from the festival. He was alleged to have forcibly dragged YB away from the festival and sexually assaulted her. Based on this incident, Appellant was convicted of raping YB.
Afterward, Appellant returned to his friend's house where he was staying. He threw his clothes in the washer and turned the washer on high heat. As Appellant later described it to investigators, all he was thinking while he was walking home was how he had just “raped this girl” and he needed to wash his clothes to make sure that any evidence, such as blood or semen, were cleaned out of his clothes. This was the basis for the obstruction of justice charge.
After walking to the Oktoberfest festival in the village, Appellant noticed Ms. YB and approached her. During their introductory conversation, YB told Appellant that she was 16 years old, and Appellant told her he was stationed in Greenland and visiting a friend who lived nearby. Appellant spent the rest of the evening with YB and her friends…. Toward the end of the evening, YB and Appellant went outside alone, to an area lit only by light coming from an opening in the nearby tent.
YB testified that Appellant then kissed her and placed his hand underneath her shirt. She refused his advances by knocking Appellant's hand away and telling him to stop. When she tried to walk away, he grabbed her by the arm and then put his hands around her neck and pulled her back. YB described the hold on her neck as being tight enough for her to feel breathless. Thinking her life was over, she attempted an unsuccessful self-defense maneuver, which caused her to fall. Appellant dragged her towards some nearby bushes. YB testified that she was crying out for help. Appellant initially put his fingers in her mouth to quiet her, which caused her to choke and cough. When she bit down on his fingers, he removed them from her mouth and held her mouth closed. YB continued to struggle and resist by kicking and trying to hit Appellant, while he physically held her down. She eventually stopped fighting because she did not have any physical strength left. Appellant pulled her pants and underwear down to her knees so forcefully that he broke the zipper on her pants, and engaged in sexual intercourse with her. While this was occurring, and with YB fearing for her life, she asked Appellant not to kill her and pleaded with him not to become a murderer. After Appellant ejaculated, he got up without saying anything and walked away. YB ran back to the tent crying and her friends called the police.
When interviewed by German authorities, Appellant claimed the sexual intercourse was consensual. He later retreated from this position when talking to military investigators. His statement was recorded and entered into evidence at trial. During the interview, Appellant's version of events morphed from his initial claims of consent to a version of events much closer to that described by YB. He admitted to investigators that his “animalistic” urges took over during the encounter, that he pulled YB down, and he was a “little bit too aggressive, ” and that YB “wasn't really into it.” He also admitted YB “kind of screamed out” and that he probably put his hand over her mouth to keep her quiet. He also recalled YB telling him something to the effect of “don't hurt me” while he was penetrating her. Appellant conceded to investigators that he believed YB did not want to have sexual intercourse with him, based on YB's verbal and non-verbal responses, but said he decided to continue anyway. He also confided to investigators that his first thought after the incident was that he had just raped her. Nevertheless, Appellant continued to maintain during the interview that YB did not fight back and that she took off her own pants prior to the sexual intercourse.

United States v. Evans, CCA Dkt. No. 38651 (A.F.C.C.A. 22 Oct. 2015)(Doc.#6, Attach. 2, pp. 3-5).

         Petitioner was sentenced to confinement for 20 years, reduction to the grade of E-1, and a dishonorable discharge. The convening authority approved the sentence.

         On May 15, 2015, petitioner filed an Assignment of Errors Brief in the AFCCA. He presented three claims of error: (1) whether the evidence was legally and factually insufficient under Charge II, Specification 2 to support a conviction under Article 120 of the Uniform Code of Military Justice (UCMJ); (2) whether the evidence was legally and factually insufficient under Charge IV to support a conviction for service discrediting conduct by allegedly wrongfully doing laundry ...


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