Back in May, Col Sullivan reported:
NMCCA heard oral argument in United States v. Lucas, No. 201100372 yesterday. Today, it issued this order indicating that it has decided to reverse a finding of guilty to rape while upholding a finding of guilty to adultery and set aside the sentence. To prevent SSgt Lucas from having to serve any more unjustified confinement, NMCCA issued the order preceding preparation of the full opinion. The order directs that SSgt Lucas be released from confinement “forthwith.”
The CCA issued its opinion on August 28. United States v. Lucas, No. 201100372 (N-M.Ct.Crim.App. Aug. 28, 2012). First, some facts:
Beginning in late 2009, the Appellant and a female Marine in his unit, Corporal (Cpl) C, became close friends. In March 2010, they went on a date that culminated in consensual sexual intercourse in the Appellant’s off-base housing. . . . In April 2010, the Appellant married another woman (not Cpl C). . . . On 27 May 2010, the Appellant went to Cpl C’s barracks room on her invitation to discuss some problems Cpl C was having with her chain of command. . . . There is substantial disagreement between the parties as to the chain of events that took place next. Cpl C testified that while in her barracks room, the Appellant held her face down on her bed with his right forearm, using his left hand to undo their respective MCMAP belts and unbutton and pull down not only his trousers, but hers as she fought to keep them up. He then penetrated her vagina with his penis from behind, thereby committing forcible rape. After a few minutes of “fighting with all of [her] might,” Cpl C “froze” and stopped resisting the sexual intercourse. The Appellant, according to Cpl C, then turned her over onto her back and continued having nonconsensual sexual intercourse with her from the front. . . .
The parties agree that after the intercourse had continued for several minutes, the Appellant asked Cpl C where she would like him to ejaculate. Pursuant to her instructions, he ejaculated on her stomach, avoiding the new navel ring she had acquired. The parties also agree that the Appellant and Cpl C then went to the double sinks in Cpl C’s barracks room to clean up, and both of them proceeded to the change of command ceremony. During the ceremony the two exchanged multiple text messages. In fact, over the eight days following the incident, the Appellant and Cpl C sent each other over 100 text messages. . . .
Fourteen days after the events of 27 May, Cpl C approached a female acquaintance and reported that she was raped.
The Appellant was convicted, contrary to his pleas, by a general court-martial of members with enlisted representation,of forcible rape and adultery. The approved sentence included confinement for 24 months, forfeiture of all pay and allowances, reduction to pay grade E–1, and a bad-conduct discharge. However, the CCA finds”that the Government failed to prove the element of force and disprove the Appellant’s mistake of fact beyond a reasonable doubt.” Slip op. at 4. In doing so, the court disassembled the Government’s prosecution, piece-by-piece.
The court found that the Government failed to prove the element of force based on four factors: (1) the “Logistics of Cpl C’s Account of the Incident,” (2) “Cpl C’s Post-Incident Conduct,” (3) “Cpl C’s Character for Untruthfulness and Complaint Discrepancies,” and (4) “The Appellant’s Good Military Character and the NCIS Statement.”
On the logistics, the court observed:
It is illogical to believe that a man weighing just over 200 pounds could accomplish these tasks [remove her clothes, boot, and hold her down] against a female Marine, trained in Marine Corps Martial Arts, weighing 155 pounds, under the circumstances described in the record before us. This is especially so when it appears that the Appellant is right handed (see PE 18, showing him sign his statement to NCIS with his right hand), and there is no allegation or evidence that Cpl C was intoxicated or otherwise incapacitated.
Slip op. at 5-6. Of Cpl C’s post-incident conduct, the court concluded:
We note that Cpl C exchanged approximately 30 text messages with the Appellant on the evening of 27 May . . . There were an additional 70 text messages that followed the next week; however, she only reported to the NCIS agent that there was one text message, which she claimed she had deleted. It defies logic that one who suffered a traumatic forcible rape would carry on repeated friendly contact with her assailant, and then delete the messages. Additionally, Cpl C and the Appellant had at least one friendly face-to-face conversation between 27 May and the time Cpl C reported an assault. . . . We find that this conduct undercuts Cpl C’s credibility sufficiently to raise a reasonable doubt as to the Appellant’s guilt.
Slip op. at 6. Considering Cpl C’s credibility, the court found:
[Cpl C’s] behavior is inconsistent with the reporting of a sexual assault. . . .
Finally, during the 8 June recorded phone call that was intended to elicit a confession from the Appellant, Cpl C failed to mention any use of physical force by the Appellant or her vain efforts to escape from him, and, in fact, indicated that the only reason she did not consent was due to a fear of getting pregnant. Her choice of words during this phone call was completely inconsistent with a person who had endured the forcible rape that Cpl C described at trial. Also, it is significant that Cpl C did not dispute the Appellant’s statement during the call that they were both responsible for the alleged pregnancy. Had the intercourse been nonconsensual, it would make no sense for the complaining witness to assume any degree of responsibility for the resulting pregnancy.
Slip op. at 6-7. Finally, reviewing the Appellant’s good military character, the court noted:
The Government presented no evidence that the Appellant possessed a character for untruthfulness. We find that the explanations he gave to the NCIS agent regarding the events of 27 May are believable, especially considering the evidence of his good military character and service history admitted at sentencing.
Based on the totality of the evidence, we are not persuaded of the Appellant’s culpability as we conclude that the alleged victim’s testimony lacks credibility and we hereby reject it.
Slip op. at 7. This section of the opinion also includes a fairly strongly-worded footnote that criticizes the conduct of criminal investigators in this case:
Although we recognize that the Appellant’s typed statement to NCIS in some form admits culpability, we express grave concern about the lack of detail in the statement, particularly in light of the fact that NCIS interviewed the Appellant for almost two hours, yet produced a statement about the incident consisting of a mere 14 lines. Furthermore, when comparing the typed written statement and the interrogation video to the NCIS agent’s in-court testimony, we note the agent left out or seriously mischaracterized important relevant details the Appellant provided during the interrogation.
Slip op. at 7, n. 6. The court then turned to the defense of mistake of fact:
Cpl C testified that during the earlier consensual sexual encounter between them in March, she had been laughing. While she denied laughing during the events of 27 May during her trial testimony, we find the Appellant’s mention of her laughing at least eight times during the NCIS investigation to be credible and telling. Furthermore, his account that her only reservation or hesitation to engage in the sexual conduct was based on his marital status is believable, especially in the context of his explanation that once he removed his wedding band, Cpl C willingly participated in kissing, play-wrestling, and sexual intercourse with him. We find that these facts indicate that even if Cpl C did not subjectively consent to the sexual activity, her conduct was such that the Appellant had an honest and reasonable mistake of fact as to her consent.
Slip op. at 8. Having made these findings, the court set-aside the forcible rape conviction and dismissed the charge.
However, there is still the matter of the adultery conviction, which involved a defective Art. 134 specification. But unlike other recent cases, there was discussion of a terminal element on the merits – in the defense case in chief:
However, during the defense case in chief, there was direct testimony from LCpl JM as to the effect the Appellant’s conduct had on good order and discipline of the armed services, and the defense registered no objection.
Slip op. at 9. The CCA also noted in a footnote:
that although this testimony was presented during the defense case on the merits, the defense failed to move either pretrial for a bill of particulars or at the close of the Government’s case for dismissal of the adultery specification under R.C.M. 917.
Slip op. at 9, n. 7. Reviewing these factors, the CCA concluded:
Based on the record before us, there was absolutely no indication that the Appellant or his counsel were surprised to learn of the Government’s theory on the terminal element, albeit as presented during a defense witness’ testimony, or unable to defend against the evidence regarding the terminal element. Most importantly, the defense counsel conceded that the Appellant “committed adultery” in his closing argument and specifically refers to the disparity in rank with respect to conduct prejudicial to good order and discipline.
The Government’s theory, and therefore the terminal element, “is somewhere extant in the trial record,” and the Appellant was provided sufficient notice.
Slip op. at 11. That the court holds the Defense accountable for it’s failure to object (to the specification, testimony, or argument) alleviates at least some of my concerns of sandbagging raised in the wake of CAAF’s opinion in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Ultimately, the CCA set-aside the sentence and authorized a rehearing on sentence for the adultery conviction only.