Recent NMCCA Opinion: United States v. Olaya

The NMCCA affirmed the conviction and sentence of Quartermaster Third Class Kenneth Olaya, finding no prejudicial error.
​Olaya Opinion here.

     ​On November 16, 2020, the Navy-Marine Corps Court of Criminal Appeals affirmed the conviction and sentence of Appellant Kenneth Olaya.  Appellant was convicted and sentenced by a general court-martial consisting of officer members, contrary to his pleas, of one specification of attempted child sex trafficking, one specification of attempted enticement of child prostitution, one specification of attempted illicit sexual conduct in a foreign place, and one specification of patronizing prostitutes in violation of Article 134, Uniform Code of Military Justice, and one specification of attempted sexual assault, in violation of Article 80, UCMJ.[1]
 
Background/Pertinent Facts

      Appellant was a 25-year-old Sailor stationed in Bahrain who was on a dating app.  He was active on the site when NCIS approached him undercover, as a young female Thai prostitute.  She asked him if he’d like to “sponsor” a young Thai prostitute in his home and take a portion of her earnings and have sex with her as much as he desired, to which he expressed interest in younger girls and continued communicating with her on another social media app.  “She” told Appellant that she had a 16 year old girl coming and arranged a meeting with her at a hotel and for him to bring two condoms and 10 Bahraini Dinar, the currency, in a plastic bag.[2] When Appellant arrived at the hotel to meet the actual 15-year-old-girl, he received the key at the front desk and asked the organizer of the meeting where the girl was.  He was greeted by NCIS special agents who apprehended him outside of the hotel room. 
 
Law

1. Factual and Legal Sufficiency of the Evidence

 
     The NMCCA reviewed the factual sufficiency of the Appellant's conviction de novo. However, after an independent determination of weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court was convinced of Appellant’s guilt beyond a reasonable doubt. Additionally, the NMCCA reviewed the legal sufficiency of the evidence in the light most favorable to the prosecution and whether a reasonable fact finder could have found all the essential elements beyond a reasonable doubt, in which they also answered in the affirmative.
 
   Appellant's assignment of error alleges that the charges were not proved beyond a reasonable doubt that he engaged with a child under 16 years of age. However, the Court disagreed, finding that the Appellant took a substantial step towards his crime because the "girl" would not have turned 16 years old prior to the encounter, regardless of the time zone they were in. The Court also found that Appellant took a substantial step by messaging the woman on the app; asking for photos; agreeing to meet the then 15 year-old-girl at the hotel before her birthday; and traveling to the hotel. Given the above evidence, the Court found that his conviction was legally and factually sufficient.
 
    Additionally, the NMCCA held that Appellant was not entrapped because he was not induced by the Government, because an undisposed person or a law-abiding person would not be induced to sexual contact with a minor girl merely by an invitation to profit, and therefore his claims are factually and legally sufficient. 
Conclusion
 
The NMCCA held that there was no prejudicial error as to Appellant’s claims and affirmed his conviction and sentence. His affirmed sentence, approved by the convening authority, consisted of: confinement for fifteen months, forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge. 


[1]The military judge conditionally dismissed the attempted enticement of child prostitution and attempted illicit sexual misconduct in a foreign place specification based on an unreasonable multiplication of charges.

[2]He was told that the “girl” would be turning 16 one day after they met, to which he responded, “Lol that’s good.”

Alexandria Murphy

Intern