Recent NMCCA Opinion:United States v. Rocha

The NMCCA affirmed the findings and sentence of Lance Corporal Tomas Rocha, Jr, finding no prejudicial error. However, the NMCCA ordered correction of the results of trial, that one of the charges of which Appellant was convicted should be characterized as "other sexual misconduct" as opposed to "sexual assault."

Rocha opinion here.

​On September 17, 2020, NMCCA affirmed the findings of guilty and the sentence of Lance Corporal Tomas Rocha, Jr. (Appellant). Contrary to his pleas, Appellant was convicted of one specification of dereliction of duty, two specifications of sexual assault, and one specification of indecent viewing, in violation of Articles 92 ,120, and 120c, UCMJ, for willfully failing to perform his duties as a gate sentry onboard Camp Pendleton, for touching the breast of the victim, Ms. White, by causing bodily harm and by placing her in fear of being fined $1,000, and for indecently viewing Ms. White's breasts as she attempted to come onboard Camp Pendleton. Appellant asserted three assignments of error, renumbered as follows: (1) the military judge abandoned his role as an impartial participant in the court-martial by assisting the Government in establishing proof of an element of an offense; (2) the evidence is legally and factually insufficient to sustain Appellant's conviction under Article 120c, UCMJ; and (3) the results of trial are inaccurate in characterizing Appellant's conviction for Article 120c, UCMJ, as a sexual assault. 
 
While Appellant was on duty watching the San Onofre gate to the base, Ms. White approached in a large sport utility vehicle on her way to her on-base home where she resided with her husband, Sergeant Lima. At the gate, Ms. White encountered Appellant, who explained that her license plate light was out, and that this vehicle infraction carried a fine of $1,000. Appellant then suggested that Ms. White could avoid the purported $1,000 fine if she removed her top to expose her breasts to him. She did so, and Appellant squeezed her left breast, at which point Appellant permitted her to depart the parking lot for her home. Two days later, Ms. White reported the incident, which made its way to Marine Corps Criminal Investigation Division, which conducted a photographic lineup where Ms. White identified Appellant as the individual who had groped her. 
 
At trial, in the course of receiving testimony, the military judge, sitting as the fact-finder, asked questions of his own. In total, he asked 14 questions of the witnesses, most of which were driven toward clarification of the witnesses' testimony. Only two questions seemed aimed more towards the elicitation of facts not brought out by the Government on direct examination. Ultimately, the military judge returned findings of guilty to all charges and specifications.
 
The NMCCA first considered whether the military judge abandoned his duty of impartiality, and looked to the questions he asked in the proceedings. Considering whether a reasonable person observing the proceedings would have doubted the court-martial's legality, fairness, and impartiality based on the judge’s actions. However, NMCCA noted that the judge conducted questioning of the witnesses in a neutral manner, with largely non-leading questions, and over no objection by counsel. The NMCCA therefore found no error, plain or otherwise.
 
Appellant also asserted that the evidence presented at trial was factually insufficient to prove he committed the offense of indecent viewing, arguing that he did not view Ms. White's breast "under circumstances in which the other person had a reasonable expectation of privacy," given that she lifted her shirt to reveal it. The NMCCA disagreed, and found his conviction for indecent viewing both legally and factually sufficient, reasoning that "a victim has a reasonable expectation of privacy in a secluded, parked car" and that Appellant could not "vitiate" Ms. White's reasonable expectation of privacy by causing her to expose herself to him.
 
While the NMCCA determined that the findings and sentence were correct in law and fact and that no error materially prejudiced Appellant's substantial rights. However, the NMCCA agreed with both Appellant and the Government that the Results of Trial did not accurately reflect that Appellant's conviction for indecent viewing under Article 120c, UCMJ, and should be characterized as "other sexual misconduct" as opposed to "sexual assault." Accordingly, the findings and sentence were affirmed.

Payton Alexander

Senior Intern