In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:
The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.
Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.
Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.
On the vagueness claim, the CCA notes that sexual activity with a person of a certain level of intoxication has long been criminalized in the military:
The concept of a victim being incapable of consent due to intoxication has long been proscribed criminal conduct within the military. See United States v. Grier, 53 M.J. 30, 33 (C.A.A.F. 2000) (holding no instructional error where military judge instructed the members that if victim is incapable of consenting due to intoxication, “no greater force is required that that necessary to achieve penetration”); United States v. Mathai, 34 M.J. 33, 36 (C.M.A. 1992) (holding that evidence of rape was sufficient where the record established that the victim was unconscious due to alcohol intoxication, “and that [Mathai] reasonably knew or should have known that she had not consented”); MCM, Part IV, ¶45c(1)(b) (2005 ed.).
Slip op. at 13-14. The court concludes that “service members of ordinary intelligence have fair notice of what is prohibited . . . that one who engages in sexual intercourse with another who is unconscious due to alcohol intoxication could be prosecuted if the individual who initiated the sexual act knew, or should have known, that the other person was unconscious.” Slip op. at 14 (marks and citations omitted).
The court interprets the equal protection as a claim of selective prosecution, and rejects it:
Assuming arguedo that the appellant’s claim is even justiciable because the sovereign that elected to prosecute the appellant would have no jurisdiction over AM, this argument is without merit. First, the appellant has failed to meet his required burden of showing discriminatory intent. United States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987). Second, courts are particularly “ill-suited to . . . review” prosecutorial decisions. Wayte v. United States, 470 U.S. 598, 607 (1985). Third, we presume that the CA acted in good faith in his decision to refer charges following the recommendation of the Article 32, UCMJ, investigating officer and the Article 34, UCMJ, pretrial advice recommendation from his staff judge advocate. See United States v. Masucock, 1 C.M.R. 32, 35 (C.M.A. 1951) (noting that there is a long-standing legal presumption of “regularity in the conduct of governmental affairs”); see also Hagen, 25 M.J. at 84 (holding that within context of allegation of vindictive prosecution by a CA, “[t]here is a strong presumption that the convening authority performs his duties as a public official without bias”). We find no discriminatory effect or purpose associated with Article 120(b)(3), UCMJ, generally, or with the decision specifically to prosecute the appellant for sexually assaulting AM. It was, after all, the appellant who initiated sexual intercourse with the unconscious AM. Accordingly, the appellant has not met his burden of establishing error, let alone plain and obvious error.
Slip op. at 12. Notably, this isn’t the first time the NMCCA has addressed an argument along these lines. Sam wrote about the NMCCA’s consideration of United States v. Redmon, No. 201300077 (N-M. Ct. Crim. app. Jun. 26, 2014) (link to unpub. op.) in a post titled: NMCCA Addresses Selective Prosecution and Equal Protection in the Context of Sexual Assault.
Lastly, the court considers a statement of the military judge when he gave special findings:
To reconcile the testimonial and scientific evidence, the military judge stated that he relied on “[his] common sense and [his] knowledge of human nature and the ways of the world.” Id. This was not error. First, the discussion portion to R.C.M. 918(c) instructs a finder of fact to “us[e] common sense and knowledge of human nature, and . . . weigh the credibility of witnesses.” Second, “ways of the world” assessment in evaluating evidentiary credibility has long been recognized within military law. See United States v. Frey, 73 M.J. 245, 250 (C.A.A.F. 2014) (holding that trial counsel’s argument to members during sentencing that they rely on “the ways of the world” to conclude that Frey would molest children in the future without any evidentiary predicate was improper but not prejudicial); see also United States v. Rivera, 54 M.J. 489, 492 (C.A.A.F. 2001) (holding that it was reasonable for members to rely on “common knowledge” to conclude that a punch to the stomach of “13-year-old . . . create[ed] a substantial risk of serious bodily injury”). Although Frey and Rivera were both members cases, we find no reason why the principles that members may use their common sense and ways of the world to assess the credibility of the evidence should not apply in equal measure in a military judge alone case.
Slip op. at 9-10. Interestingly, the military judge didn’t provide the special findings at trial, but instead attached them to the record post-trial (when he authenticated the record of trial). Slip op. at 9. But the CCA finds clear difference between the facts of this case (where there was scientific evidence for the military judge to evaluate) and the facts of Frey (where “in lieu of evidence, trial counsel appealed to members to apply their knowledge of the ‘ways of the world’ to sentence Appellant.” Frey, 73 M.J. at __, slip op. at 8.).