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: