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NMCCA Opinion Summary: Hanabarger -- Another Factual Sufficiency Win for a Defendant

8/3/2020

 
United States v. Hanabarger [opinion link here]

            Appellant was convicted of two specifications of sexual assault in violation of Article 120 of the Uniform Code of Military Justice (UCMJ). First, Appellant was convicted of penetrating a female Staff Sergeant’s (SSgt Charlie) vulva with his penis by causing bodily harm—without her consent. Second, doing so again hours later when he knew or reasonably should have known she was asleep.
            Appearing before the NMCCA, Appellant submits four assignments of error.[1] However, the majority reaches its conclusion focusing exclusively on his first assignment of error—whether the evidence presented is legally and factually insufficient to support Appellant’s convictions.[2] In this 2-1 decision, the Court found that the presented—namely, the admitted evidence and trial testimony—did not “eliminate[] every fair and reasonable hypothesis except guilt.”[3]


[1] The additional assignments of error—though not addressed by the majority as they found the evidence lacking to support the conviction—include:
(2) the trial counsel committed prosecutorial misconduct by introducing evidence of bruising to SSgt Charlie’s inner thighs at trial after unequivocally promising during pretrial litigation that he would not do so; (3) the military judge erred in denying a Defense motion to compel production of the lead Naval Criminal Investigative Service [NCIS] agent who investigated the case; and (4) Appellant’s trial defense counsel were constitutionally ineffective.

[2] The dissent, however, while finding the evidence to be sufficient, would have decided the case based upon the second and third assignments of error.

[3]  The Court explains that “[a]fter reviewing the record, focusing solely on the admitted evidence and testimony at trial, we are not persuaded the Government proved its case beyond a reasonable doubt.”
The 0430 Incident (Specification 1 of the Charge)
           
            During the drive back to Camp Pendleton from SSgt Charlie’s home, Appellant bragged about his recent relations with the Staff Sergeant to two junior Marines who were also present at the home. Appellant described having sex “a couple of times.” However, seemingly unconcerned about sexual assault, SSgt Charlie sought only to know if the Appellant “pulled out.” Consequently, the Court declared that “[t]he existence of at least one other ‘fair and rational hypotheses’ other than guilt precludes us from being convinced beyond a reasonable doubt that this act occurred without SSgt Charlie’s consent.”
 
The 0900 Incident (Specification 2 of the Charge)
 
            At trial, SSgt Charlie testified that she awoke to a knock on the door and found Appellant “aggressively penetrating her vulva with his penis.” At this, the Court noted that she “made no indication of distress, shock, or other outward signs, but only got out of bed, put on a robe, and answered the door.”
            What is more, when Cpl Alpha knocked on the door, she inquired as to whether the occupants were “decent” to which Appellant replied, “No. Definitely not.” At bottom, deciding between two possibilities,[1] the Court determined that the Government had not met its burden to prove a “sexual assault beyond a reasonable doubt, and in the process render the other possible consensual in flagrante delicto scenario fanciful conjecture.”
             Accordingly, the Court found the evidence presented in the case insufficient and unable to sustain the convictions. Further still, the Court determined that the Government had not met its burden to prove its case beyond a reasonable doubt. For the Court, there was simply “too much reasonable doubt” surrounding the evidence.

[1] On one hand, the Court reasoned, Appellant’s response to Cpl Alpha would have roused SSgt Charlie as his mouth, based on their “spooning” positioning, would be close to her ear as he was assaulting his sleeping victim. However, an equally plausible explanation would conclude that the two were engaged in a consensual encounter and issued a warning to Cpl Alpha that they were “not decent.”

Farris Francis

Intern

Brenner M. Fissell
8/2/2020 10:38:04 pm

No opinion on the merits, but congratulations to frequent CAAFlog commentator Nathan Freeburg on this victory for his client.

Scott
8/3/2020 05:42:52 am

Props to the dissenting judge for writing an extraordinarily thorough opinion explaining why they would have reversed on other grounds than those relied on by the majority (issues the majority did not reach due to their conclusion re FS).

The DAC-IPAD’s latest report seemed to recognize the problem with non-binding Article 32s being an insufficient protection against week cases going forward. This is certainly a stark example of that: the 32 not only recommended against going forward but found no PC - the case went forward anyway - but was doomed by the same insufficient/flawed evidence the 32 PHO had warned about.

The MJ denying production of the lead NCIS agent is a particularly strange detail.

William Cassara link
8/3/2020 07:43:05 am

This case is Exhibit A of why Congress should not do away with FS review.

Contract Lawyer
8/3/2020 07:58:05 am

At first I thought they had just let another diddler walk, but when the Art. 32 investigation is considered along with the issues in the dissent, this accused did not get a fair trial. I speculate that the government put the lead investigator out of the way on purpose.

Nathan Freeburg
8/3/2020 08:41:06 am

LT Mike Wester did excellent work on the briefs. Very happy for the client and his family.

Phil Cave link
8/3/2020 09:12:35 am

https://dacipad.whs.mil/images/Public/08-Reports/06_DACIPAD_Report_20200331_Final_Web.pdf

"Disposition of penetrative sexual offenses following a finding of “no probable cause” by the preliminary hearing officer • On average, convening authorities took action consistent with the Article 32 preliminary hearing officer’s determination(s) of no probable cause—i.e., dismissed the charges lacking probable cause—in a majority
(66%) of the Navy, Marine Corps, Air Force, and Coast Guard bases
• In the Army, on average, convening authorities took action consistent with the Article 32 preliminary hearing officer’s determination(s) of no probable cause in a minority (33%) of cases.
• In FY17, 32 cases were referred to court-martial after an Article 32 preliminary hearing officer determined that there was no probable cause to believe a penetrative sexual offense occurred. Fifteen of the 32 referred cases (47%) resulted in dismissal of the penetrative sexual offense(s).195 In 17 of the 32 cases (53%), the penetrative sexual offenses were tried by court-martial. Of those penetrative sexual offense cases that were tried by court-martial, more than three-fourths (76%) resulted in verdicts of not guilty. Notably, one of the guilty verdicts was overturned on appeal due to lack of evidence.

Gene Fidell link
8/6/2020 03:46:32 am

The following appears on p. 54 of the 2020 DACIPAD report from which Phil quotes:

"In FY18, 18 cases were referred to court-martial after an Article 32 preliminary hearing officer determined that there was no probable cause to believe a penetrative sex offense occurred. Seven of the 18 referred cases (39%) resulted in dismissal of the penetrative sexual offense(s). In 11 of the 18 cases (61%), the penetrative sexual offenses were tried by court-martial. Of those penetrative sexual offense cases that were tried by court-martial, nearly three-fourths (73%) resulted in verdicts of not guilty."


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