Recent AFCCA Opinion: United States v. Gere

On January 12, 2021, the AFCCA denied TSgt Soren G. Gere's petition for a new trial pursuant Art. 73, UCMJ.
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Gere opinion here.

      At a general court-martial, contrary to his pleas, TSgt Soren G. Gere, was convicted of one specification of attempted sexual assault of a child, one specification of sexual abuse of a child, and one specification of sexual assault of a child, in violation of Articles 80 and 120b, UCMJ. Petitioner was sentenced to a dishonorable discharge, confinement for ten years, and reduction to the grade of E-1. The convening authority approved the sentence, and AFCCA affirmed the findings and sentence on appeal.
      While the appeal was pending in AFCCA, Petitioner petitioned The Judge Advocate General of the Air Force for a new trial pursuant to Article 73, UCMJ. Petitioner’s claim that he is entitled to a new trial relies on newly discovered evidence that victim SN made an allegedly false report of an unrelated sexual assault approximately one year prior to Petitioner’s trial. 

1. Facts

 
       Victim SN, a 13-year-old girl, lived with her mother, JR, near Wright-Patterson Air Force Base, where petitioner was stationed. JR was dating petitioner and SN would regularly interact with him. In September 2016, at petitioner’s home, petitioner and JR furnished multiple alcoholic drinks for SN, who became intoxicated. Petitioner walked SN to his bed, gave her a pill to “help her sleep,” and left with JR to go to a local bar. According to SN’s testimony, Petitioner returned with JR, got into the bed with the SN, and began to touch her. SN did not tell her mother the next day, but did tell multiple friends. One of those friends told her own mother, who immediately reported the incident to Child Protective Services. A social worker and a civilian law enforcement officer were dispatched to SN’s house, and she agreed to go to a hospital to undergo a sexual assault forensic examination (SAFE). At trial, a forensic expert witness testified that “a low amount of male DNA” was found on the public area samples taken, but that there was insufficient DNA present to link the sample to an individual male. Another expert testified that SN’s urine sample showed traces of the active ingredient in over-the-counter sleep aid medication. 

     2.   Petition for New Trial   
     On appeal, Petitioner’s arguments predominately relied on claims that SN was not a credible witness. Petitioner petitioned for a new trial while the appeal was pending. Petitioner’s principal argument was that SN made a false report of an unrelated sexual assault incident prior to petitioner’s trial but after the alleged incident. Specifically, SN alleged that on 15 November 2017, an unknown student at her middle school grabbed her buttocks in the school lunch line. Petitioner attached a police report to his petition which found no corroborating evidence of the incident, but did not state or imply that the report was false either. Petitioner also attached a “cease and desist” letter sent from the school board to SN’s father demanding that he stop making allegations that the school “covered up a sex crime.” 

      3.    Law   
    Under Article 73, UCMJ, a petitioner may request a new trial “on the grounds of newly discovered evidence or fraud on the court.” A new trial shall not be granted on the grounds of newly discovered evidence unless the petitioner shows that: 

1.  The evidence was discovered after the trial;
2. The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and 
3. The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused. 

 
R.C.M. 1210(f)(2). 
 
            The court noted that under common law, petitions for new trials are generally disfavored and subject to a stringent burden of proof. 

      4.    Application  
     The court found that Petitioner did not meet the burden of proof necessary for the court to grant a new trial because he (1) did not demonstrate that the evidence could not have been discovered before the trial through due diligence, and (2) did not show that the evidence would have probably produced a substantially more favorable result. 

      I.    The evidence could have been discovered before trial    
      Petitioner’s counsel knew that SN was abruptly removed from school in December 2017, but did not ask why. They also interviewed SN and her father before trial, and failed to ask if SN had ever been the victim of another assault, been involved in other criminal investigations, or filed a police report. Moreover, they could have requested that the court order the production of documents not in the Government’s possession, but failed to do so. As a result, the court concluded that petitioner had not proved that the evidence could not have been discovered at the time of trial through the exercise of due diligence. 

     II.    The evidence would not have “probably produced a substantially more favorable result”  
      As a threshold issue, the court found that Petitioner had not proved that the evidence of SN’s allegedly false report would have been admissible at trial because although the report was not corroborated, it had not been shown to be false either, and “evidence of an alleged victim’s prior accusation of sexual assault is only admissible if the prior accusation is shown to be false.” United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017). Without showing that the new evidence would have been admissible, Petitioner cannot prove that it would have “probably produced a substantially more favorable result.” 
       Even if the evidence would have been admissible, the court found that Petitioner did not prove that it would have been likely to change the result at trial. SN’s testimony was supported by outcry witnesses, video evidence showing she was given alcohol, toxicology reports showing evidence that she ingested sleeping medication, and DNA analysis showing male DNA near her vaginal area. The court found that this evidentiary support of SN’s testimony was strong enough that, even if the new evidence could have casted doubt on her credibility, there was not a strong probability of a more favorable result for Petitioner. 

Jackson Rubinowitz

Intern