United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM, U.S. DISTRICT JUDGE
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.
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.
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).
was sentenced to confinement for 20 years, reduction to the
grade of E-1, and a dishonorable discharge. The convening
authority approved the sentence.
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