CAAF decided the Army case of United States v. Robinson, 77 M.J. 294, No. 17-0231/AR (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). The court unanimously affirms the findings, sentence, and decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Senior Judge Effron who concurs in part and in the result.

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

In 2013 Specialist (E-4) Robinson – who was a Sergeant (E-5) at the time – attended a party at the residence of another specialist. Many were in attendance, including junior enlisted soldiers. Among those in attendance was Specialist (SPC) VM, who “was the only female at the party.” Slip op. at 3.

Much alcohol was consumed, and “SPC VM abruptly left the party after she became uncomfortable with another guest’s behavior and drove back to her barracks.” Slip op. at 3. Robinson later went to SPC VM’s barracks room, having “told his wife that he was leaving home to go check on a ‘drunk Soldier’ in the barracks.” Slip op. at 7. While SPC VM testified to little memory of the events in her barracks room, Robinson and VM both testified at trial that sexual intercourse occurred. Robinson, however, testified that the intercourse was consensual. But the military judge applied Mil. R. Evid. 412 to prohibit Robinson from testifying “that SPC VM had flirted with [him] for several months before [the party].” Slip op. at 4. The military judge “concluded that the evidence of SPC VM’s flirting on the night of the party was admissible, but not the evidence of flirting in the months leading up to the party.” Slip op. at 4.

A general court-martial composed of members with enlisted representation convicted Robinson of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The members sentenced Robinson to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement). The Army CCA affirmed in a summary disposition.

CAAF’s grant of the issue questioning whether the military judge’s Mil. R. Evid. 412 ruling was error got attention, including from the victims-rights advocacy group, Protect Our Defenders (POD) which filed an amicus brief asserting that an alleged victim’s privacy interests can override an accused’s right to present constitutionally-required evidence.

But today’s opinion doesn’t address that contentious issue, nor does it address the mens rea required for fraternization in violation of Army Regulation 600-20. Rather, finding the sexual assault conviction legally sufficient (an unsurprising result considering the high burden for reversal on this basis), a majority of CAAF concludes that any error in the military judge’s Mil. R. Evid. 412 ruling and the instructions on the fraternization offense was harmless because the evidence of guilt is overwhelming.

Only Senior Judge Effron would go further, but not much further. He finds that the “wide range of behavior from mild teasing to sexual innuendo” excluded under Mil. R. Evid. 412 “was, at best, marginally relevant to the charged offenses and relevant defenses.” Con. op. at 5-6. Accordingly, while Senior Judge Effron does not agree that the excluded evidence “was so inconsequential that the error was harmless beyond a reasonable doubt,” con. op. at 4, he nevertheless concludes that Robinson has not shown error in its exclusion.

Judge Ohlson begins with the legal sufficiency issue that was specified by the court. Legal sufficiency requires “viewing the evidence in the light most favorable to the prosecution” and questions whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Slip op. at 6 (quoting United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (CAAFlog case page)). This is a strict standard that poses a heavy burden for any appellant, and it is one that Robinson fails to overcome:

We conclude that the trial evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was incapable of consenting. First, SPC VM had consumed a large quantity of alcohol at the party, and it was apparent to the partygoers—to include Appellant—that SPC VM was intoxicated. Specifically, various witnesses later testified at the court-martial that they witnessed SPC VM stumbling, slurring her speech, and almost hitting a stop sign when driving from the party. Moreover, later that night Appellant told his wife that he was leaving home to go check on a “drunk Soldier” in the barracks.

Second, Appellant testified that when he entered SPC VM’s barracks room he saw a trashcan and a bottle of water next to SPC VM’s bed.

And third, Appellant admitted to CID that SPC VM was “pretty much asleep” when he arrived at her barracks room and that he later thought that SPC VM “was probably too intoxicated to consent” to have sex.

Slip op. at 6-7 (paragraphing added). While these facts may cause reasonable people to doubt the convictions, that is not the standard for legal sufficiency. Rather, the question is whether the members could have found the essential elements proven beyond a reasonable doubt. Here CAAF concludes that “viewing this evidence in the light most favorable to the prosecution, the Government presented sufficient evidence to establish that Appellant knew or reasonably should have known that SPC VM was incapable of consenting to sexual intercourse due to her impairment by intoxication.” Slip op. at 8.

Judge Ohlson then turns to Mil. R. Evid. 412. But rather than tackle whether an alleged victim’s privacy can override an accused’s constitutional right to present evidence in his own defense, CAAF “assume[s] without deciding that it was error for the military judge to exclude [the] evidence.” Slip op. at 8. The court makes this assumption because it:

conclude[s] that the military judge’s presumed error in excluding evidence that SPC VM had flirted with Appellant prior to the night of the offense was harmless beyond a reasonable doubt.

First, the Government introduced ample evidence not only that SPC VM was significantly intoxicated, but also that Appellant knew that SPC VM was significantly intoxicated. Specifically, the record clearly shows that Appellant witnessed SPC VM’s consumption of alcohol, he observed her slurred speech and stumbling, he admitted to seeing SPC VM almost hit a stop sign as she drove away from the party, he informed his wife about going to the barracks to check on a drunk soldier, and he admitted that when he arrived at SPC VM’s barracks room he had to ask her, “Do you know who I am?”

Further—and importantly—Appellant admitted to CID that he recognized that SPC VM was probably too intoxicated to consent.

Therefore, even if the flirtation evidence had been admitted at the court-martial, there is no reasonable probability that it would have changed the result of the trial. Accordingly, the military judge’s presumed error in excluding the flirtation evidence under M.R.E. 412 was harmless beyond a reasonable doubt.

Slip op. at 9 (paragraphing added). This is a somewhat surprising – and very abrupt – resolution of this issue.

Senior Judge Effron’s concurring opinion digs a little deeper because he does not find the evidence of guilt so overwhelming. But he does find the excluded evidence of flirting to be underwhelming:

Appellant’s motion at trial referred generally to acts such as smiling, hugging, flirting, and grabbing—words that encompass a wide range of behavior from mild teasing to sexual innuendo. Without further details as to the specific conduct, the evidence was, at best, marginally relevant to the charged offense and relevant defenses. Likewise, the general reference to talking about sex encompasses a wide range of topics from a vague expression of interest to a specific discussion of time, place, and manner. It is not apparent from the record whether these were necessarily discussions of mutual interest or merely casual banter. Likewise, without further detail as to the specific content of the discussions, the evidence that they talked about sex was, at best, marginally relevant to the charged offense and relevant defenses. Whether this would be necessarily admissible under M.R.E. 412 in another case is not before us. In this case, Appellant has not offered details as to the nature of the conduct or the content of the conversations sufficient to demonstrate that the probative value of the evidence outweighed the danger of unfair prejudice.

Con. op. at 5-6.

Finally, Judge Ohlson addresses the mens rea issue.

CAAF’s recent mens rea jurisprudence was the #8 Military Justice Story of 2017. That jurisprudence includes four opinions authored by Judge Ohlson in 2016 and 2017 addressing the mental state required to violate the UCMJ. Judge Ohlson authored another this year, in United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page). But Judge Ohlson’s opinion of the court in Robinson won’t join that list:

Simply stated, the third prong of the plain error analysis resolves the issue before us. Specifically, even if we were to assume without deciding that “recklessness”—or even “knowledge”—was the appropriate mens rea for this Article 92, UCMJ, offense and that the military judge erred in failing to instruct the panel accordingly, Appellant has failed to meet his burden of showing that “but for [this error], the outcome of the proceeding would have been different.” Lopez, 76 M.J. at 154.

It is uncontroverted that Appellant: knew he was attending a party with junior enlisted soldiers; knew he was the only noncommissioned officer at the party; knew that four of the junior enlisted soldiers at the party were in the same company as he; knew that all of the junior enlisted members were drinking alcohol, including at least one who was underage; knew that one of the junior enlisted members was intoxicated; and knew the noncommissioned officer’s creed and the standards for noncommissioned officers. Therefore, even if the military judge had provided the panel members with the appropriate mens rea instruction, it is clear that the panel would have found that Appellant knew that his presence as an E-5 compromised, or appeared to compromise, the integrity of supervisory authority, caused actual or perceived partiality, or created a clearly predictable adverse impact on authority.

Slip op. at 10.

 Case Links:
• ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Amicus brief (Protect Our Defenders) in support of Army Gov’t App. Div.
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

21 Responses to “Opinion Analysis: Dodging a contentious question about Mil. R. Evid. 412, CAAF finds any error harmless in United States v. Robinson (AR)”

  1. Sir Visdis Crediting says:

    Any speculation as to why CAAF would specify the legal sufficiency issue and then treat it like used toilet paper? It’s almost like they were trolling the regular commenters here. Re-reading the comments on the Argument Preview post, one would have the impression the Court recognized a real injustice and was going to right the wrong. 

  2. stewie says:

    If the argument is that the evidence was otherwise super overwhelming so the flirting wouldn’t have mattered (and the accused admitting she was incapacitated certainly doesn’t help his cause) sure, got it.
     
    But I would have liked the court to have made clear that a history of flirting is indeed relevant and not barred by 412. It may not have mattered in this case because the evidence was so overwhelming, but it will matter in much closer cases.

  3. k fischer says:

    How in the world can CAAF say that the assumed error by the military judge was harmless beyond a reasonable doubt when a panel members asked a witness during the Court-martial whether VM ever displayed an interest in Robinson?”  From the Appellant’s brief, pages 8-9:
     

    During trial, a panel member submitted a question for Mr. Isaiah Rodriguez, who knew both SPC VM and SPC Robinson. (JA 80, 305). One part of this question asked, “From what you know of SPC [VM], did she ever display interest 9 towards SPC Robinson?” (JA 305). The trial counsel objected based on “MRE 412.” (JA 305). The military judge sustained the objection and told the panel member “that question is prohibited by the Rules of Evidence . . . the question dealing with Specialist [VM] relating to Specialist Robinson.” (JA 100).
     

    So, at least Effron had the intellectual honesty to make an argument that the MJ’s ruling was not error, rather than rely solely on whether the assumed error was harmless BARD.
     
    What prevented defense counsel from asking Robinson who testified:
    “Why did you think it was okay to have sex with VM?” 
    Well, I saw her run down a flight of stairs and she was able to drive home to the barracks, so I didn’t think she was incapacitated.
    “Did you base your assessment on her desire to consent on anything else?” 
    Well, past conversations I’ve had with her and her behavior over the past two months made me think that she was sexually attracted to me and wanted to have sex with me.
     
    As long as he didn’t go into the substance of the conversation prohibited by the Judge’s ruling, he can still talk about why he thought that when she was grabbing his arm as he was going to leave that she had the ability to consent and that she wanted to have sex with him.  At that point, the panel will want to know, “Well, what did you guys talk about over the past two months?”  Then, the MJ has to figure out whether it comes in or stays out.  And, the appellate courts know that it WOULD have made a difference in the verdict.
     
    This was a horrible opinion and future TC’s and SVP’s are going to use it for the most it has to be worth, i.e. the concurrence stating that past flirtatious acts and conversations about sex are not admissible because the marginal relevance is outweighed by the unfair prejudicial effect of the evidence. 
     
    But, this falls in line with new and improved strategies to obtain convictions that are being considered, such as making text messages pre and post coitus similar to 412 evidence, requiring defense to provide notice to the Government before introducing them.  The Canadians are looking into this after the acquittals in the Ghomeshi trials.  It’s only a matter of time before our Congressional representatives realize that too many acquittals are based on sexual communications before and after the “rape.”
     

  4. k fischer says:

    Stewie, 
     
    I’m not sure the evidence was overwhelming.  VM ran down a flight of stairs.  She swerved to miss a stop sign, but otherwise was able to drive back to her barracks.  She grabbed Robinson’s wrists and told him to stay.  They had sex multiple times in different positions.  There was no BAC measurements. And, it doesn’t seem like 5 or 6 drinks would incapacitate a female who in fact was able to run down a flight of stairs and drive her car.
     
    His statement to his wife that he had to go check on a drunk soldier could have been an admission, but it also was a great excuse leave after checking in with the wife.  Also, his admission that if he were VM’s father, then would she have been too drunk to consent is placing him into the position of someone who would be biased.  Parents have a more protective view of things regarding their children, then adults do between each other.
     
    Then, you look at the sentence.  No confinement.  NONE!  I just don’t see the evidence in this case as overwhelming.
     

  5. stewie says:

    sentence of no confinement doesn’t mean much to me. I’ve seen it happen in cases that did have overwhelming evidence. Point is, if the Court saw the evidence that way, I can understand why wrongly keeping out flirting would be considered harmless error. What I don’t like is not definitively labeling it as error.

  6. Charlie Gittins says:

    I see a sentence of no confinement as evidence of residual doubt on the part of the panel.

  7. (Former) ArmyTC says:

    I see it as a sentence of no confinement. 
    To see it as anything else would mean I have to be making uneducated assumptions at best and wild speculations at worst. And since they didn’t teach me how to conjure visions of deliberations or deliberative processes in law school, I’m going to go ahead and read nothing into it. 

  8. stewie says:

    That’s nice. Doesn’t mean it is…I personally know of panels where the members were downright angry at each other because some wanted a more harsh punishment while others wanted a light one because they agreed it was technically a crime but didn’t want it to be, always in intoxication cases with victims who were “bad.”

  9. Zachary D Spilman says:

    Courts – unlike commenters – generally avoid trying to divine the reason why members return mixed findings or light sentences. 

    In United States v. Powell, 469 U.S. 57, 65 (1984), for example, the Supreme Court explained that jurors might reach inconsistent findings through mistake, compromise, or lenity. And that’s when it has to be unanimous.

    When only 2/3 of a court-martial panel need agree on the findings and sentence (for confinement of 10 years or less), there can be innumerable reasons for seemingly nonsensical results. Unfortunately, that doesn’t stop people from pretending the result (whatever it is) supports their preferred theory.

    The Government Appellate Divisions are particularly notorious for this. Full conviction? It’s because the evidence was overwhelming. Mixed findings? It’s because the members carefully parsed the evidence and convicted the accused only where the evidence was overwhelming. Acquittal of all but one specification? That’s because members saw the case for what it really is and convicted the accused of the one thing that the evidence proved overwhelmingly. 

    Full acquittal? The Government Appellate Division is sorry, but it has no record of that case. 

  10. k fischer says:

    Okay fine.  Forget the zero confinement and how I and Charlie think it is indicative of the panel’s misgivings about convicting the Accused because the Government had a weak case that gave them residual doubt.
     
    What about the fact that a panel member was asking the very question that the judge suppressed, nor was the panel permitted to consider that the Accused and VM previously spoke about having sex prior to that night?  The DC did ask that question to the accused on the stand, drew the objection, and the military judge told the panel to disregard everything that happened prior to that evening to include conversations about sex.
     
    How is it that CAAF assumed error, but found that it would not have affected the verdict BARD?  Sounds like the panel wanted to know the information, so wouldn’t it have been considered by at least one panel member?  Judge Effron makes the most logical sense, not that I agree that the trial judge did not err, but at least he didn’t have to make the ridiculous leap that the evidence would not have impacted the verdict.  But, to assume that it was error, so you can go to the next step in the analysis to determine whether or not it was harmless is kind of disingenuous considering the panel wanted to know the answer.  The evidence of guilty in this case doesn’t seem like it is all that overwhelming to me.
     
    Buuut, I guess you have a Military Judge, three judges on ACCA, and 1 CAAF judge, who unanimously agree that the evidence is not admissible.  Then, you have four CAAF judges who think that it didn’t matter anyways.  So, maybe I’m the one who is eating a soup sandwich over here.  

  11. Charlie Gittins says:

    Well, I had the experience before I was a USMC lawyer of serving on two Marine court-martial panels.  I saw the sausage being made, and participated in its making, from inside the deliberation room.   And I tried the Sergeant Major of the Army case where an enlisted CSM member actually “quit” the case during deliberations he was so pissed at the raft of votes for acquittal.  The judge talked him down off the ledge.  Finally, I voir dired 56 members in the SGT Bozicevich case and learned much about juror mentality through use of the Colorado method, an experience which not many military lawyers have had.  Those experiences and 25 years trying military justice cases across all of the services provides me with some factual justification for my opinion.  Credit it or not.     

  12. stewie says:

    So 1000s of courts-martial, tens of thousands of CM members over that time, but your direct contact in two of those cases and that you’ve done the Colorado method of voir dire qualifies you to state definitively what any panel means when they don’t sentence someone to confinement?
     
    That’s some super hero stuff there.  Others have used the Colorado method, have talked to panels, had panels express concerns, etc. As Zach correctly said, when you have a non-unanimous system any and every possible reason for a verdict or sentence is going to be present and trying to ascertain why one, individual panel did, particularly when you didn’t see it at all, is hubris.
     
    kf, I think the point here is that a reasonable jury could find it important, few are disputing that.

  13. Zachary D Spilman says:

    I think Charlie’s experience is relevant, stewie, but doesn’t change my fundamental point that courts generally avoid trying to divine the reason why members return mixed findings or light sentences (and for good reasons).

    It’s one thing to let the mind wander on a blog. It’s another thing entirely to do that in a judicial opinion. 

  14. Tami a/k/a Princess Leia says:

    Assuming error sends a message that flirtation occurring months prior CAN be admissible under MRE 412.
     
    My biggest concern is that CAAF seems to be drinking the SHARP Kool-Aid that “too drunk to drive” = “too drunk to consent to sex,” when they made clear in prior opinions that fixation on intoxication was legal error.  Someone who is capable of driving, albeit drunk, seems to be capable of consenting to sex, even though that would be a bad decision.
     
    Seems panel members and judges, and even lawyers STILL don’t understand the difference between “drunk sex” and “too drunk to be able to consent to sex,” and that the first, while inadvisable, is not illegal, and only the second is criminal.  Even CID agents don’t understand the difference between the two, so appellant’s “confession” that she was “too drunk” isn’t persuasive.

  15. stewie says:

    Facts are relevant. Argument from (in comparison to the vast number of trials–limited) experience rarely is.
    Speculation is fine, taking it being definitively X doesn’t even qualify as speculation.

  16. Jagustus says:

    This seems to be a case where the relationship between the parties is irrelevant. The accused was convicted of having sex with someone incapable of consenting. Flirting doesn’t matter.  In fact, if the victim and accused were married twenty years with a long history of consensual sex, by the statute, the accused’s conduct would still meet the elements of the crime. Typically past sexual history is relevant to show a mistake of fact as to consent.  However, in this case, a mistake of fact defense would have to attack whether the accused knew or reasonable should have known the victim was drunk, not whether or not the victim consented.

  17. Zachary D Spilman says:

    However, in this case, a mistake of fact defense would have to attack whether the accused knew or reasonable should have known the victim was drunk, not whether or not the victim consented.

    Not quite, Jagustus. Mere intoxication does not make for a sexual offense (despite what the training says). The statute requires that the person be incapable of consenting due to intoxication, and that the accused knew or reasonably should have known that the person was incapable of consenting

    A successful mistake of fact as to consent defense shows that the accused reasonably (but wrongly) believed the person consented. Because a person who does consent necessarily can consent, United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011), a reasonable (but wrong) belief that a person did consent disproves the knowledge element of the offense.

    See Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (noted here).

  18. Jagustus says:

    Zach,
      I think the “reasonableness of the belief of consent” goes hand in hand with the “should have known that the person was incapable of consenting.” The belief of consent is reasonable if the accused did not have reason to believe the victim was incapable of consenting. But then I go back to the facts and circumstances surrounding what a reasonable person should have believed. There are certainly circumstances where it is likely that a reasonable accused would not have a reason to believe that victim was incapable of consenting (and the victim was actually incapable of consenting). I just don’t think a history of flirting, at least in this case, gives rise to such circumstances.

  19. Zachary D Spilman says:

    I think the “reasonableness of the belief of consent” goes hand in hand with the “should have known that the person was incapable of consenting.” The belief of consent is reasonable if the accused did not have reason to believe the victim was incapable of consenting.

    You’re still making the same mistake.

    If the accused believed that the other person did consent, then they necessarily believed that the other person was capable of consenting. Accordingly, an accused’s reasonable mistake of fact as to consent disproves the knowledge element of the offense.

    The reasonableness of the belief, however, and whether what the accused considers consent meets the statutory definition of the term, are questions of fact that are answered when determining if the prosecution disproved the defense of mistake of fact as to consent beyond a reasonable doubt. See R.C.M. 916. 

    That statutory definition – by the way – and litigation about what it means made Competency to consent the #9 Military Justice Story of 2015.

    In Robinson, it seems like the flirting could have provided essential context for Robinson’s belief that VM consented. But CAAF is unanimous in its conclusion that – based on the entire record (that it has and we don’t) – admitting evidence of the flirting wouldn’t have changed the result.

  20. stewie says:

    If you believe the record shows she was incapable of consenting at the time of sex, then yes, mere flirting would not be enough to overturn said conviction which is why CAAF held what it held (I just would have liked clarity that such evidence ordinarily is admissible).
     
    I’m not sure I agree, if this is the argument being made by anyone, maybe not…that there is no evidence of consent prior that could overcome evidence that at the moment of intercourse the person was too intoxicated for sex.  For example, let’s say there is a prior sexual history, where she has said something to the effect of, I’m fine with him having sex with me while I am passed out, he’s my man, and he can have it anytime he wants. I would think that would be something to consider.

  21. k fischer says:

    Jagustus, 
     
    Without the prior flirting and the talking about of sex, then the panel might believe that Carpenter was an opportunity rapist, meaning that he went back to VM’s barracks room because she was flirting with him that evening and it also affects their view of the credibility of his testimony, meaning she took his hand and told him to stay, she had sex with him in multiple positions, took his shirt off, grabbed her butt while he was having sex with her, etc.  In their view with the evidence the MJ allowed them to see, had he not taken the opportunity to take advantage of her when she was incapacitated by alcohol, then he would not have the opportunity again.  So, he couldn’t wait.  He had to do it then, and his testimony about grabbing his hand and telling him not to go, etc. was not believed.
     
    But, if the panel heard they had both discussed having sex over a two month period of time and VM had been “trying to get with him,” then his story sounds more credible when he says that she grabbed his hand because of the flirting and the sex talk over the past month, and she is consenting to something that she would have consented to whether or not she was incapacitated, and most importantly, he thinks she is consenting to something they previously talked about.  This goes to corroborate his story.