In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (link to slip op.), a three-judge panel of the NMCCA applies CAAF’s recent decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities.

Finding the same errors as CAAF found in Hills (an abuse of discretion in allowing the prosecution to use charged offenses for propensity purposes, and an instruction to the members about the evidence that undermines the presumption of innocence), the NMCCA concludes:

Having found abuse of discretion and error, we must assess the prejudice to Chief Ellis and determine whether the instructional error was harmless beyond a reasonable doubt. While the Government presented a strong case against Chief Ellis, it suffered some of the same weaknesses that concerned the CAAF in Hills. There was no physical evidence. Other than Ms. LW and Chief TA, none of the eyewitnesses observed sexual contact or sexual acts. Evidence of the actus reus of all but one specification consisted solely of the accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation that Chief Ellis penetrated her vagina with his penis using her initial statements that he performed oral sex but only attempted vaginal intercourse. The members acquitted Chief Ellis of one specification of abusive sexual contact involving Chief TA, convicting him instead of the lesser included offense of assault consummated by battery and revealing their reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast and buttocks in the bathroom. Finally, trial defense counsel challenged Chief TA on her possible bias, prejudice, or motive to misrepresent stemming from her role as Ms. LW’s victim advocate and her subsequent decision to report her 11-month-old encounter with Chief Ellis as a sexual assault.

The facts of this case prevent us from being certain, beyond a reasonable doubt, that error did not contribute to Chief Ellis’s convictions.

Slip op. at 6.

The CCA sets aside the findings and sentence, authorizing a rehearing.

One Response to “The NMCCA applies Hills to reverse multiple sexual offense convictions”

  1. k fischer says:

    So, this is how the NMCCA has interpreted Hills in a case where there are two charged offenses involving two complaining witnesses, respectively.  I would be interested in what CAAF says.  I predict they will agree.
     
    I always raise an eyebrow when the fact pattern indicates a period of the victim receiving oral sex followed by an assault.  Then, the victim reported to a victim advocate who then brings up her assaults from 11 months ago by the same individual just makes something seem a little hinky.  Not to say that it couldn’t have happened just like they said it could, but there is a reasonable possibility that two females are colluding to ruin a man’s life with false allegations.  
     
    Kind of like that case with the gay AF Lt, Josh Seefried, who was accused of assaulting a gay Marine Officer by forcibly orally sodomizing him.  This Marine Officer who somehow made it through the rigorous physical training at Quantico just couldn’t get the AF Lt to stop blowing him because he was so drunk.  That case resulted in an acquittal, which was celebrated by the Huffington Post.  Right result because the Marine’s story sounded hinky.  The MJ should have had reasonable doubt.
     
    I don’t know what the entire story is with Chief Ellis, but there are enough facts in the opinion to make me raise an eyebrow.  Glad to see the NMCAA came down the way it did in its application of Hills.
     
    In the rehearing, if Ellis’s defense is consent that is supported by his potential testimony, but he did not testify at trial, then I would highly recommend that he testifies.  It is not enough for a defense attorney to impeach a complaining witness nowadays with prior inconsistent statements to get an acquittal.  The new normal is the presumption that the complaining witness is telling the truth, and it takes both a strong impeachment case against her, along with credible testimony by him to gain an acquittal.  And, when you have two or more complaining witnesses, then the potential for a conviction increases immensely because you have two stories against one.  And, quite frankly, I think the lack of the 413 instruction will have little impact in some multicomplaining witness cases because some panels will still think “where there’s smoke, there’s fire.”