CAAF will hear oral argument in the Army case of United States v. Gutierrez, No. 14-0009/AR (CAAFlog case page), on Tuesday, January 14, 2014. The case presents the second legal sufficiency challenge before the court on Tuesday, as CAAF will determine:
Whether the evidence of stalking was legally sufficient where Appellant was acquitted of rape and the prosecution relied on the evidence of rape to prove stalking.
Appellant and a “Ms AM” met at a New Years Eve party on December 31, 2009. Eight months later, on August 3, 2010, the two had sexual intercourse at AM’s home. Over the next two months, Appellant and AM exchanged text and Facebook messages, Appellant repeatedly called AM, and Appellant twice went to AM’s home. Of these two visits, on the first occasion Appellant “rang Ms. AM’s doorbell for approximately one hour, but she never let him in.” App. Br. at 5. On the second occasion, on October 2, 2010, Appellant “arrived outside Ms. AM’s apartment and began kicking and banging on her door.” App. Br. at 6. A friend of AM eventually called military police, who apprehended Appellant. AM then claimed that she was raped by Appellant when they had sex in August.
Based on these events, Appellant was charged with one specification of rape in violation of Article 120 (2006), and one specification of stalking in violation of Article 120a. He pleaded not guilty to both offenses. A general court-martial composed of members with enlisted representation convicted Appellant of only the stalking. He was acquitted of the rape. The panel sentenced Appellant to confinement for one year, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Army CCA summarily affirmed the findings and sentence.
Appellant’s brief argues that the Government’s theory of the case tied together the sexual intercourse on August 3 (charged as a rape) and Appellant’s contact with AM over the following two months (charged as stalking) as a continuous course of conduct that required proving the rape in order to prove the stalking:
In their closing argument, the government argued that the course of conduct in this case included several occurrences commencing with the rape of Ms. AM. In order to find PFC Gutierrez guilty of stalking, the fact-finder had to believe that PFC Gutierrez engaged in a course of conduct which induced a reasonable fear of bodily harm. . . . the government correctly argued on closing that the rape was necessary in order to find that these repeated phone calls and text messages as well as coming to Ms. AM’s house uninvited would cause such fear in Ms. AM because he first raped her.
App. Br. at 12 (emphasis added) (citations to record omitted). The brief doesn’t use the word “inconsistent,” but the Government’s brief responds by analyzing caselaw discussing inconsistent verdicts. The Government’s brief concludes that that, “An inconsistent verdict, standing alone, is not a basis for relief.” Gov’t Br. at 15.
But the basic premise of Appellant’s brief is that, “Based on the panel’s finding of not guilty as to the rape charge, a reasonable fact-finder could not have found all of the elements of stalking beyond a reasonable doubt.” App. Br. at 9. This premise is largely based on separating the sexual intercourse from the follow-on events. Because stalking requires “a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm,” separating the sex in August from the events of the subsequent two months enables Appellant to argue that there was no legally sufficient “course of conduct.” It also provides a basis for the argument that:
Without first finding that PFC Gutierrez raped Ms. AM, no reasonable fact finder could have found that PFC Gutierrez knew or should have known that Ms. AM was placed in fear by his text messages and ringing the doorbell.
App. Br. at 14. The Government’s response to these arguments re-litigates the trial:
The evidence is sufficient to prove both of the contested elements. First, appellant raped AM. AM’s testimony establishes that fact, and [Appellant’s wife] supports AM’s testimony by agreeing, in effect, that appellant was at AM’s apartment for a period of time longer than necessary to drop off packages.
Gov’t Br. at 19-20 (emphasis added). While reading these words I heard Judge Ryan’s voice in my head saying, “wait a minute counsel, Appellant was acquitted of the rape, right?” The Government’s substantive position – that regardless of the acquittal, the evidence of rape is “still relevant evidence with respect to stalking” (Gov’t Br. at 20) – gets a little lost in the brief’s insistence that the members (who were actually present for the trial) somehow got it wrong in their findings. But things settle down a few pages later:
Appellant correctly notes that no expressly threatening language was used during the calls or texts, and a review of the testimony and exhibits shows that the messages were to the effect of “I want to talk to you” and “please call me.” While those messages may not, on their face, appear to be threatening, a proper review of all the evidence – not just the evidence appellant wants this Court to consider – in its proper context shows otherwise. Based on all the evidence adduced at trial, a reasonable fact finder , drawing all reasonable inferences in the government’s favor, could have found beyond a reasonable doubt that appellant’s conduct was repeated and impliedly threatening. Likewise, a reasonable fact finder could also have found beyond a reasonable doubt that appellant did know or should have known that his conduct would place AM in reasonable fear of bodily harm or death.
Gov’t Br. at 21. “A proper review of all the evidence . . . in its proper context” is the heart of this case, and the separation of the sex from the follow-on events in Appellant’s brief is more effective advocacy than the re-litigation of the nature of the sex in the Government’s brief.
CAAF’s receptiveness during next week’s oral argument to either Appellant’s efforts at separation or the Government efforts at re-litigation will likely determine the outcome of this case.