The U.S. Air Force Court of Criminal Appeals affirmed Military Judge Jimenez’s finding that Brandon Leach had violated Article 120 of the Uniform Code of Military Judge, 120 U.S.C. § 920. Appellant Leach raised nine (9) issues on appeal, however the Court found that the Appellant was not prejudiced and that the Military Judge had correctly decided the case.
Brandon Leach dated L.E., an Air Force reservist from May 2016 to May 2017, before the couple broke up and Leach asked L.E. to move out of their apartment. While Leach and L.E. had lived together, Leach had engaged in recreational use of marijuana and anabolic steroids.
On July 14, 2017, L.E. reported Leach’s drug use to Security Forces and disclosed that Leach had sexually assaulted her. Security Forces referred the case to the Air Force Office of Special Investigations (AFOSI), who began to investigate the complaints before referring Leach to a court-martial in April 2018.
Military Judge Christina Jimenez had previously found servicemember Brandon Leach guilty of one count of sexual assault, in violation of Article 120 of the Uniform Code of Military Judge (UCMJ), 120 U.S.C. § 920. Appellant Leach had also previously been found guilty of wrongful use of marijuana and wrongful use of anabolic steroids, in violation of Article 112(a) of UCMJ, 10 U.S.C. § 912a. Appellant Leach was sentenced to three year imprisonment, forfeiture of pay, was lowered to an E-1 pay-grade and received a reprimand. Appellant appeals his sexual assault conviction on nine (9) different grounds, however the Court declined to address the constitutionality of the sexual assault statute he was charged under.
Subject Matter Jurisdiction
Appellant alleged that the court martial lacked subject matter jurisdiction over him, as the government pursued an “unlawful use of force” theory of sexual assault against him and Appellant claimed he could not defend himself against a legal theory that he was not specifically charged with.
The Court dismissed this claim, as the Government has jurisdiction to charge any member of the armed forces who has allegedly violated a provision of the UCMJ.
Legal and Factual Sufficiency
Appellant alleged that the evidence was insufficient to support the guilty finding, as he believed that L.E. was not a credible witness. Appellant alleges that L.E. was inconsistent in her testimony, as she had falsely told Security Forces and AFOSI that she had sex with Appellant every day.
The Court looked at the evidence in the light most favorable to the prosecution and found that a rational finder of fact could find the Appellant guilty of sexual assault. Although L.E. had minor inconsistencies in her testimony, she was consistent about material facts that Appellant had penetrated her without consent, and despite her physical and verbal resistance. Despite the fact that a year had passed since the initial interviews by Security Forces and AFOSI, L.E.’s testimony only varied from her interviews in minor ways.
Admission of Prior Statements
Appellant alleged that the court had erred when it had admitted recordings from the interviews with L.E. and that his counsel was ineffective. The Court found that Appellant had waived his right to raise this issue, as he did not challenge the admission of the recordings during trial.
Appellant argued that Judge Jimenez provided an erroneous instruction for the definition of consent under the UCMJ. The Court found that Judge Jimenez’s instruction reflected the statute and noted that defense counsel never raised an objection to her instructions. Given that Appellant had not raised the issue during trial, the Court found that Appellant forfeited his right to raise it on appeal.
Trial Counsel’s Closing Argument
Appellant argued that that the prosecutor had engaged in misconduct when he referred to the Appellant as “a monster, a liar, and a terrible human being,” mentioned an uncharged offense (rape) several times, misstated the judge’s instructions and personally vouched for evidence.
The Court found that the prosecutor did not directly disparage the Appellant, but commented that women who are sexually assaulted by a partner may view their assailants as monsters, liars and as terrible human beings. Still, the Court believed that it’s a fair inference to make that victims will view their attackers negatively, however agreed that prosecutors should not use such rhetoric.
The Court also found that the prosecutor had unintentionally claimed that the Appellant was accused of rape twice, but that the other four (4) times the prosecutor had used the term to discuss how victims feel, rebut attacks from the defense and boost the witness’s credibility. The Court believed that the prosecutor should not have mentioned an uncharged offense, but believed there was no prejudice to the Appellant.
The Court found that the prosecutor was right when he told the court that if they believed L.E., they should vote to convict him.
Finally, the Court acknowledged that the prosecutor had improperly vouched for the evidence when he asserted that he believed that the evidence demonstrated that Appellant had sexually assaulted L.E. However, Judge Jimenez instructed the jury that her instructions controlled and to disregard any other improper instructions.
Overall, the Court believed that these errors were isolated incidents and had minimal impact on the outcome of the trial, as the Defense Counsel could not successfully impeach L.E.’s credibility.
Disclosure of Evidence
Appellant argued that the government failed to disclose exculpatory evidence from its pre-trial interview of L.E.
The Court found that the defense made an overly broad discovery request and never had specific discovery requests. The government failed to disclose two key facts that L.E. told trial counsel that Appellant wore sweatpants, despite telling investigators that he wore shorts, and that she told appellant “Ow, that hurts” during the assault, which she had not previously disclosed.
However, the Court believed that the outcome would not have changed as L.E. was consistent about all the material facts and her overall testimony did not cause doubts.
Ineffective Assistance of Counsel
Appellant argues that his counsel was ineffective for not asking for the prosecutor’s disparaging comments about the Appellant to be suppressed. The Court found that a reasonable attorney might not have objected to this comment, and defense counsel did admit that he did not want to challenge “unpersuasive rhetoric.” Furthermore, the court did not believe that suppression of this statement would have led to a different outcome in the trial.
Post Trial Delay
Appellant contends that his due process right to a speedy trial was violated as he was not sentenced and issued an opinion in his case in a timely manner. The Court found that Appellant was sentenced eighteen (18) days later than required, due to the complexities of the case. Furthermore, the opinion was issued two (2) months late, as the Appellant took one year to file his assignment of error motion and asked for eleven extensions. The Court found that the delay was caused by the Appellant, thus the delay was not unreasonable.
The Court held that there was no undue delay that would lead an average person to question the fairness of the military justice system.
U.S. Air Force Court of Criminal Appeals affirmed Military Judge Jimenez’s guilty finding and sentencing of Appellant, finding that there was no prejudicial error.
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