In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:

The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.

Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.

Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.

On the vagueness claim, the CCA notes that sexual activity with a person of a certain level of intoxication has long been criminalized in the military:

The concept of a victim being incapable of consent due to intoxication has long been proscribed criminal conduct within the military. See United States v. Grier, 53 M.J. 30, 33 (C.A.A.F. 2000) (holding no instructional error where military judge instructed the members that if victim is incapable of consenting due to intoxication, “no greater force is required that that necessary to achieve penetration”); United States v. Mathai, 34 M.J. 33, 36 (C.M.A. 1992) (holding that evidence of rape was sufficient where the record established that the victim was unconscious due to alcohol intoxication, “and that [Mathai] reasonably knew or should have known that she had not consented”); MCM, Part IV, ¶45c(1)(b) (2005 ed.).

Slip op. at 13-14. The court concludes that “service members of ordinary intelligence have fair notice of what is prohibited . . . that one who engages in sexual intercourse with another who is unconscious due to alcohol intoxication could be prosecuted if the individual who initiated the sexual act knew, or should have known, that the other person was unconscious.” Slip op. at 14 (marks and citations omitted).

The court interprets the equal protection as a claim of selective prosecution, and rejects it:

Assuming arguedo that the appellant’s claim is even justiciable because the sovereign that elected to prosecute the appellant would have no jurisdiction over AM, this argument is without merit. First, the appellant has failed to meet his required burden of showing discriminatory intent. United States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987). Second, courts are particularly “ill-suited to . . . review” prosecutorial decisions. Wayte v. United States, 470 U.S. 598, 607 (1985). Third, we presume that the CA acted in good faith in his decision to refer charges following the recommendation of the Article 32, UCMJ, investigating officer and the Article 34, UCMJ, pretrial advice recommendation from his staff judge advocate. See United States v. Masucock, 1 C.M.R. 32, 35 (C.M.A. 1951) (noting that there is a long-standing legal presumption of “regularity in the conduct of governmental affairs”); see also Hagen, 25 M.J. at 84 (holding that within context of allegation of vindictive prosecution by a CA, “[t]here is a strong presumption that the convening authority performs his duties as a public official without bias”). We find no discriminatory effect or purpose associated with Article 120(b)(3), UCMJ, generally, or with the decision specifically to prosecute the appellant for sexually assaulting AM. It was, after all, the appellant who initiated sexual intercourse with the unconscious AM. Accordingly, the appellant has not met his burden of establishing error, let alone plain and obvious error.

Slip op. at 12. Notably, this isn’t the first time the NMCCA has addressed an argument along these lines. Sam wrote about the NMCCA’s consideration of United States v. Redmon, No. 201300077 (N-M. Ct. Crim. app. Jun. 26, 2014) (link to unpub. op.) in a post titled: NMCCA Addresses Selective Prosecution and Equal Protection in the Context of Sexual Assault.

Lastly, the court considers a statement of the military judge when he gave special findings:

To reconcile the testimonial and scientific evidence, the military judge stated that he relied on “[his] common sense and [his] knowledge of human nature and the ways of the world.” Id. This was not error. First, the discussion portion to R.C.M. 918(c) instructs a finder of fact to “us[e] common sense and knowledge of human nature, and . . . weigh the credibility of witnesses.” Second, “ways of the world” assessment in evaluating evidentiary credibility has long been recognized within military law. See United States v. Frey, 73 M.J. 245, 250 (C.A.A.F. 2014) (holding that trial counsel’s argument to members during sentencing that they rely on “the ways of the world” to conclude that Frey would molest children in the future without any evidentiary predicate was improper but not prejudicial); see also United States v. Rivera, 54 M.J. 489, 492 (C.A.A.F. 2001) (holding that it was reasonable for members to rely on “common knowledge” to conclude that a punch to the stomach of “13-year-old . . . create[ed] a substantial risk of serious bodily injury”). Although Frey and Rivera were both members cases, we find no reason why the principles that members may use their common sense and ways of the world to assess the credibility of the evidence should not apply in equal measure in a military judge alone case.

Slip op. at 9-10. Interestingly, the military judge didn’t provide the special findings at trial, but instead attached them to the record post-trial (when he authenticated the record of trial). Slip op. at 9. But the CCA finds clear difference between the facts of this case (where there was scientific evidence for the military judge to evaluate) and the facts of Frey (where “in lieu of evidence, trial counsel appealed to members to apply their knowledge of the ‘ways of the world’ to sentence Appellant.” Frey, 73 M.J. at __, slip op. at 8.).

13 Responses to “The NMCCA rejects constitional challenges to Article 120 (2012)”

  1. jagJ says:

    For the always interesting group posting here…. Won’t his now induce a race to the SHARP/Victim Advocate in order to substantiate the above argument by the appellant?  This was the subject of many discussions in a previous assignment

  2. k fischer says:

    I was hoping the opinion would encourage male Service members to not drink themselves into oblivion out of fear they might hook up with a woman who later accuses them of rape.  But racing to the SHARP office is a good plan B.  I’m wondering how they will report a female on male rape.  “I woke up next to this strange female and my penis was crusty….”.  I would hope they wouldn’t be taken seriously.

  3. Random SWO says:

    @k fisch:
    I’ve actually seen SITREPs for female-on-male SA, normally where the victim has no memory of the incident.  Fortunately, there is confirmatory physical evidence on hand even months after the episode thanks to a bouncing bundle of court-ordered child support benefits. 

  4. Peter E. Brownback III says:

    Re your comment:  “Interestingly, the military judge didn’t provide the special findings at trial, but instead attached them to the record post-trial (when he authenticated the record of trial).”
    Why is this “interesting” or worthy of comment?  Perhaps the rules or practice has changed considerably, but holding off on written findings of fact or conclusions of law for any matter had always been an excellent practice during the 80’s and 90’s and 00’s.  The MJ gets to refer to the ROT (as will the appellate counsel) (in the course of dispatching those left alive on the battlefield), take the time to get citations correct, and clean up her/his language.

  5. stewie says:

    The idea that a drunk man can be raped by a drunk woman is certainly valid, but certainly not in the case where the woman isn’t simply drunk but passed out, remembers absolutely nothing, reports it immediately, etc. In short, it’s a valid approach/theory, but this aint the case and these aren’t the facts.

  6. Zachary D Spilman says:

    That’s a great question Peter E. Brownback III. I think it’s interesting (and notable) for two reasons.

    The first is something you mention in your comment. I think that waiting until authentication in order to refer to the record and clean up the language is a terrible practice. The judge shouldn’t Monday-morning quarterback a call made during the actual trial. It’s one thing to make a verbal ruling and delay the written explanation because of time constraints. But delaying an explanation for a ruling in order to refer to materials not available at the time of the actual ruling is a dubious practice (notwithstanding R.C.M. 918(b)).

    The second is (and perhaps less controversial) reason is that the CCA’s opinion in Torres notes:

    Due to the fact that the military judge submitted his special findings on the date he authenticated the record, the appellant did not have a realistic opportunity to object at trial. Thus, we agree with his assertion that the correct scope of review is plain error.

    Slip op. at 9. I’m puzzled by the court’s (and apparently the appellant’s) application of plain error, since plain error (where the appellant has the burden to prove plain and obvious error, and prejudice) is the test for an error that is forfeited by the failure to object. The appellant didn’t have a chance to object to the special findings (because they were made contemporaneous with authentication), and so didn’t forfeit anything.

  7. Advocaat says:

    First, shame on the Marines who preferred and then referred both rape and adultery, as well as those who went along for the ride in a case where the husband appears to have had an interest in women other than his wife.  Given the dishonest charging, I can only assume the accused also got stuck with a stacked panel (on top of CMC’s UCI shenanigans) and felt he had to go judge alone because the fact pattern as presented in the opinion screams for members given the ample motive for the CW to get back at her husband, her 911 call, and her 0.00 BAC 4-5 hours after the alleged incident (BAC falls .015 an hour, meaning her BAC was no more than .08 or so at the time sexual intercourse took place).  Would love to hear the inside story on this one.

  8. stewie says:

    I might not agree with your police work there Lou. I’m pretty sure there isn’t a universal BAC falls exactly .015 an hour for all humans in all circumstances. And are we talking 4-5 hours from the alleged incident, or 4-5 hours after she woke up?

  9. Advocaat says:

    Reasonable minds can differ and you raise valid questions.  However, .015 is an accepted baseline and a logical rate to evaluate the evidence.  And I’ll spot you an additional hour (she fell asleep in the bathroom at 0130) for a total of 6 hours and a BAC of .09.  And then I’ll add another 10% to conclude she was at no more than 0.1.  Incapable of giving consent beyond a reasonable doubt?  Your friend, Lou.

  10. stewie says:

    It simply isn’t that simple and any toxicologist is going to give you a range not an absolute number like .015.  How much did she drink that night? What did others observe about her level of intoxication? When did she stop drinking? Is she a heavy or light sleeper? I don’t know. Regardless, nothing on it’s face makes it so crazy to suggest, as you appear to do, that the MJ abandoned all reason in finding the accused guilty. There are all sorts of reasons why an accused might go judge alone in a sexual assault case. Certainly if they think the panel is filled with folks who are “company men” that could be one of them.
    Now, if you tell me the witnesses all say she only had 3-4 beers and looked completely with it, etc, then we can talk, but thus far, nothing screams factual insufficiency here to me.

  11. k fischer says:

    Here is an interesting article regarding female on male rape in Seattle.  The facts are: 

    Detective Roger Ishimitsu reported. “Victim slept very hard due to a long day.”
    At 2 AM, the man told cops, he awoke to find the 5’ 7”, 240-pound Gilman on top of him. The victim said that his erect penis was inside Gilman, who had the man’s“hands pinned down over his head,”as first reported by the Seattle Post-Intelligencer.

    Apparently, the phrase “slept very hard” was a double entendre…..

  12. stewie says:

    5-7, 240 aint no joke!

  13. Pres Camacho says:

    5′ 7″ 240 lbs you say
    CID would somehow find a way to title…him