Argument Preview: Considering the difference between being impaired and being unaware (and possibly revisiting Sager), in United States v. Brantley, No.17-0055/AR
CAAF will hear oral argument in the Army case of United States v. Brantley, No.17-0055/AR (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Ramos. A single issue questions the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment:
Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.
Private First Class (E-3) Brantley was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) by touching the alleged victim’s breasts while she was otherwise unaware. The panel sentenced Brantley to confinement for 90-days, reduction to E-1, and a bad-conduct discharge. The convening authority approved the findings and sentence and the Army CCA summarily affirmed.
Brantley’s conviction was of a statute that prohibits sexual touching of “another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring.” Article 120(b)(2). In United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), CAAF concluded that the statute’s enumeration of “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted, and the court reversed a decision by the NMCCA that had held the language creates only a single theory of criminal liability based upon unawareness (the three enumerations being ways that a person may be unaware).
The prosecution of Brantley doesn’t seem to involve the kind of error committed by the NMCCA in Sager. Rather, Brantley’s brief focuses on the trial counsel’s argument to the members (apparently without objection or correction by the military judge) that Brantley was guilty because the alleged victim was merely impaired (by a combination of alcohol and prescription drugs); a condition that is fundamentally different from being unaware and alone likely too vague to form a basis for criminal liability.
The trial counsel’s closing argument included the following discussion that equated being impaired with being otherwise unaware:
Next we have the second element [of the Specification of Charge I] that the accused did so, and he did that contact but he knew or reasonably should have known that SR was otherwise unaware that the sexual contact was occurring. This is really two things, panel members, that he knew or reasonably should have known, those are two different things. What is it that he needs to have known or reasonably should have known about? Well, that’s the level of impairment. That she was otherwise unaware, that she was impaired.
What evidence do we have here? We have the accused’s statement to CID Agent Hyatt, where he indicates that she was impaired and you have his in-court testimony today, where he again tells you that he knew she was impaired. Then we also have the reasons, he should have known.
When I cupped her breast, I knew she was drunk at that point. Yeah, she threw up for a couple of hours. You’re drinking and taking medication that turned out to be Klonopin. That’s how he indicates to us that he knew she was impaired.
App. Br. at 6 (quoting record) (emphases omitted). The trial counsel also showed the following slide to the members:
App. Br. at 7 (quoting record).
Based upon these arguments, Brantley asserts that:
The government attempted to prove SR was otherwise unaware by only presenting evidence she was highly intoxicated through a mixture of alcohol and Klonopin. (JA 26, 28, 70). The trial counsel then conflated the principles of impairment and awareness for the panel during closing argument, a misstatement of law which the military judge never corrected. (JA 280-281).
While impairment can contribute to a lack of awareness, a person can have diminished alertness and capacity but still have some realization, perception, or knowledge of their surroundings. Therefore, proof SR was otherwise unaware required much more than simply finding she was impaired. The government had to prove a more difficult theory of liability and fell short of meeting its self-imposed burden. Even if SR was impaired by alcohol and Klonopin, her actions and memories from that night show she still could have been aware the sexual contact was occurring. If the panel was left to believe that to convict PFC Brantley, it only had to find SR was incapable of consenting due to impairment, then it was applying the wrong legal standard to that element and the conviction is legally insufficient.
App. Br. at 13 (emphases added).
The Army Appellate Government Division’s response – which was filed a week before CAAF issued its opinion in Sager – argues the conclusion that CAAF rejected in Sager:
After drawing every reasonable inference from the evidence of record in favor of the prosecution, a rational panel could have found beyond a reasonable doubt that the Appellant made sexual contact with Mrs. SR’s breasts while she was “passed out,” which is sufficient evidence of her being “unaware.”
Gov’t Div. Br. at 7. The Division’s response also asserts that:
The words “asleep, unconscious, or otherwise unaware” constitute a descriptive list of various means by which a victim could be unaware and thus unable to consent, not separate theories of criminal liability. This Court need only look to the plain language of Article 120, UCMJ to make such a determination.
Gov’t Div. Br. at 15. CAAF’s opinion in Sager held that “under a plain reading of [the statute] the words ‘otherwise unaware’ mean unaware in a manner different from asleep and different from unconsciousness.” Sager, 76 M.J. at 162, slip op. at 6.
The Division can’t be faulted for failing to address an opinion CAAF hadn’t yet issued (though it can be faulted for failing to file a corrected brief). It’s brief, however, ends with a troubling argument:
The panel was instructed in accordance with the Military Judges’ Benchbook to “use [their] own common sense and [their] knowledge of human nature and the ways of the world.” (JA 327); Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 2-5-12 (10 Sep. 2014). “Passed out” is a commonly used term in the English language that clearly and unambiguously describes a person who is not aware of what is occurring. This description would have been sufficient evidence to support the conviction here regardless of whether the charge stated “asleep,” “unconscious,” or “unaware.” The fact finder in this case had evidence that Mrs. SR was “passed out” at the time Appellant touched her breast and found that she was “unaware” at the time the Appellant touched her breast. There is no legal sufficiency concern.
Gov’t Div. Br. at 29-30 (emphasis added). This argument is troubling because it radically misrepresents the instruction. The Benchbook doesn’t suggest that members should use their common sense and personal knowledge as a substitute for actual evidence (such as evidence about the meaning of the term passed out). Rather, it advises military judges to instruct the members to use common sense to weigh and evaluate the evidence:
Bear in mind that only matters properly before the court as a whole should be considered. In weighing and evaluating the evidence, you are expected to use your own common sense and your knowledge of human nature and the ways of the world. In light of all the circumstances in the case, you should consider the inherent probability or improbability of the evidence. Bear in mind you may properly believe one witness and disbelieve several other witnesses whose testimony conflicts with the one. The final determination as to the weight or significance of the evidence and the credibility of the witnesses in this case rests solely upon you.
Benchbook, ¶ 2-5-12 (emphasis added). The standard instruction also explains that “reasonable doubt . . . is an honest misgiving generated by insufficiency of proof of guilt.” Id. (emphasis added). The suggestion that the members could use their common sense and personal knowledge to overcome a deficiency in the prosecution’s evidence about the alleged victim’s condition is contrary to the requirement that a conviction be based on proof.
The Government Division’s brief doesn’t address Brantley’s argument that the prosecution conflated being impaired with being unaware. A reply brief highlights this:
After conceding the difference between the two theories of liability, [impairment and otherwise aware] appellate government counsel attempt to downplay the impact of trial counsel’s erroneous argument that impairment and being otherwise unaware were equivalent. The government states, “while the trial counsel in this case emphasized the circumstantial evidence of intoxication supporting Mrs. SR’s eventual unawareness, the charge of unaware remained unchanged.” (Appellee’s Br. 23). The trial counsel did not simply emphasize circumstantial evidence, he stressed that SR’s level of impairment was the deciding element in the case by arguing, “[p]anel members, this case really comes down to just two things. Her impairment and his words.” (JA 296).
The government’s theme demonstrates its own misunderstanding of Article 120(b)(2) and highlights its erroneous interpretation of “otherwise unaware.” On appeal, the government cannot run from the overarching effects the trial counsel’s erroneous charging decision, presentation of evidence, and argument had on the court-martial.
Reply Br. at 5-6.
There is, however, another factor to consider: Brantley testified in his own defense and claimed that the alleged victim was aware and the touching was consensual. Gov’t Div. Br. at 27. “An accused testifies at his own peril and his denials under oath may be rejected by the finder of fact and used against him when resolving his guilt.” United States v. Adams, 74 M.J. 589 (A. Ct. Crim. App. 2015) (discussed here) (citing United States v. Pleasant, 71 M.J. 709, 712-14 (A. Ct. Crim. App. 2012), pet. denied, 72 M.J. 385 (C.A.A.F. 2013)). CAAF may well conclude that Brantley’s testimony, his pretrial statements that were admitted (and inconsistent with his trial testimony and with themselves, Gov’t Div. Br. at 9-14), and the other evidence (including the testimony of the alleged victim) are sufficient such that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (the test for legal sufficiency).
Yet I think there is also a strong argument that CAAF should summarily reverse and remand to the CCA for further consideration in light of Sager. There the CCA can also determine – based on a proper understanding of the law – whether it is personally convinced of Brantley’s guilt beyond a reasonable doubt (the test for factual sufficiency; a review available only at the CCA).