CAAFlog » September 2013 Term » United States v. Gutierrez

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:

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Audio of today’s oral arguments is available at the following links:

United States v. Kearns, No. 13-0565/AR (CAAFlog case page): Oral argument audio.

United States v. Gutierrez, No. 14-0009/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Gutierrez, No. 14-0009/AR (CAAFlog case page), on Tuesday, January 14, 2014. The case presents the second legal sufficiency challenge before the court on Tuesday, as CAAF will 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.

Appellant and a “Ms AM” met at a New Years Eve party on December 31, 2009. Eight months later, on August 3, 2010, the two had sexual intercourse at AM’s home. Over the next two months, Appellant and AM exchanged text and Facebook messages, Appellant repeatedly called AM, and Appellant twice went to AM’s home. Of these two visits, on the first occasion Appellant “rang Ms. AM’s doorbell for approximately one hour, but she never let him in.” App. Br. at 5. On the second occasion, on October 2, 2010, Appellant “arrived outside Ms. AM’s apartment and began kicking and banging on her door.” App. Br. at 6. A friend of AM eventually called military police, who apprehended Appellant. AM then claimed that she was raped by Appellant when they had sex in August.

Based on these events, 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. He was acquitted 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.

Appellant’s brief argues that the Government’s theory of the case tied together the sexual intercourse on August 3 (charged as a rape) and Appellant’s contact with AM over the following two months (charged as stalking) as a continuous course of conduct that required proving the rape in order to prove the stalking:

In their closing argument, the government argued that the course of conduct in this case included several occurrences commencing with the rape of Ms. AM. In order to find PFC Gutierrez guilty of stalking, the fact-finder had to believe that PFC Gutierrez engaged in a course of conduct which induced a reasonable fear of bodily harm. . . . the government correctly argued on closing that the rape was necessary in order to find that these repeated phone calls and text messages as well as coming to Ms. AM’s house uninvited would cause such fear in Ms. AM because he first raped her.

App. Br. at 12 (emphasis added) (citations to record omitted). The brief doesn’t use the word “inconsistent,” but the Government’s brief responds by analyzing caselaw discussing inconsistent verdicts. The Government’s brief concludes that that, “An inconsistent verdict, standing alone, is not a basis for relief.” Gov’t Br. at 15.

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