CAAF decided the Army case of United States v. Gutierrez, No. 14-0009/AR, 73 M.J. 172 (CAAFlog case page) (link to slip op.), on Thursday, March 20, 2014. The court finds that Appellant’s conviction for stalking is legally sufficient, affirming the findings and the summary decision of the Army CCA.

Judge Erdmann writes for a unanimous court.

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, acquitting him 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.

To be guilty of stalking, Appellant must have engaged in a course of conduct that would cause a reasonable person to fear death or bodily harm. The course of conduct presented by the Government in this case included the facts of the rape allegation of which Appellant was acquitted. So on appeal, Appellant “asserts that without the context of his initial August 10 visit to AM’s [the victim’s] home culminating in rape, a panel could not have found that the subsequent nonthreatening phone calls, text messages and visits would have induced fear of bodily harm in a reasonable person.” Slip op. at 7. CAAF granted review to 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.

And in a short discussion, Judge Erdmann concludes:

Although Gutierrez was acquitted of the rape specification, the government is correct in noting that the panel could independently consider the evidence supporting that incident while deliberating on the stalking charge. Without question the evidence before the panel as to the incident on August 10, 2010, could have been found by the members to establish that Gutierrez engaged in conduct directed at AM that would cause a reasonable person to fear death or bodily harm, including sexual assault. The evidence was also sufficient to establish that Gutierrez either knew or should have known that such conduct would place AM in reasonable fear of bodily harm or sexual assault and the panel could also have concluded that Gutierrez’s conduct induced reasonable fear in AM.

Slip op. at 10-11. A footnote quotes United States v. Powell, 469 U.S. 57, 64 (1984) to explain how this legal sufficiency analysis protects against the apparent irrationality of an acquittal for rape but a conviction for stalking that was based in part on the alleged rape:

[A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. This review should be independent of the jury’s determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.

Slip op. at 10 n.4 (quoting Powell, 469 U.S. at 67 (citations omitted)).

But Judge Erdmann also considers three other factors in Appellant’s course of conduct: “The August/September Incident” (slip op. at 11); “The October 2, 2010, Incident” (slip op. at 12); and “The Phone Calls and Messages” (slip op. at 12). These additional factors drive the final conclusion that “This record contains evidence of repeated occasions of discrete stalking conduct, as well as a pattern of repeated telephone calls and text messages from which the jury could infer both objective and subjective awareness of fear of bodily harm or sexual assault.” Slip op. at 13.

And from that it seems that CAAF finds the conviction legally sufficient even without the evidence of the alleged rape.

Case Links:
• ACCA opinion (summary affirmation)
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

2 Responses to “Opinion Analysis: United States v. Gutierrez, No. 14-0009/AR”

  1. A.Firefly says:

    The problem with the stalking offense is that, depending on the MJ, it can make everything an accused does–no matter how irrelevant, prejudicial, silly, and unrelated to other charges–“relevant” under the guise that it somehow, in some alternate universe, could have placed the victim in fear of bodily harm.  Then, with the accused’s character assassinated, the panel may acquit of the stalking charge but convict of something else because he’s a “bad guy.”

  2. Zeke says:

    CAAF’s citation in footnote 4 to the Supreme Court’s ruling in U.S. v. Powell, 469 U.S. 57 (1984), is interesting.  Powell stands for the proposition that a jury has the authority to convict on a compound offense while simultaneously acquitting on a predicate offense – something that would seem to be logically impossible without disregarding the judge’s instructions on the law.  The basis for SCOTUS’ deference to a jury’s right to return inconsistent verdicts doesn’t seem to hold up when one considers the differences between members panels and juries.  In Powell, SCOTUS essentially said juries can disregard the law because their exercise of the “collective judgment of the community” trumps the law.  SCOTUS found that the jury’s collective judgement, even if illegal (assuming that the judgement of the people could ever be deemed truly “illegal”), brings to criminal proceedings “needed finality.”  Powell, 469 U.S. at 67.  But, SCOTUS has also taken great pains in other cases to make clear that military panels are not juries under the 6th Amendment, and they do not represent the collective judgement of the community.  Court-martial panels aren’t juries, they don’t perform the same function of bringing the will of the people into the courtroom to curb prosecutorial excesses, and they therefore don’t enjoy the same right to deference when they return legally inconsistent verdicts.