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