ACCA affirmed the findings and sentence of Sergeant First Class Alan D. Ross, finding no error prejudicial to Appellant.
Ross opinion here.
Appellant was convicted, contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The military judge sitting as general court-martial sentenced appellant to a dishonorable discharge, confinement for thirty days and reduction to the grade of E-5.
Sergeant First Class Alan D. Ross (Appellant) met the victim SGT AK when he helped process her into her new reserve unit. Appellant retrieved SGT AK’s cell phone number from her paperwork and texted her after her second drill in July of 2017. The two exchanged texts throughout the week and made plans to get together at SGT AK’s apartment to hang out. After appellant kissed SGT AK early in the night, SGT AK felt uncomfortable for the rest of the night and deflected his questions about her physicality, past relationships, and sexual preferences.
SGT AK eventually told appellant “very directly” that she did not want a physical relationship with him because he could influence her career. Rejecting her reasons, appellant led SGT AK to the bed in the living room, laid her down, undressed them both and started having vaginal sex with her. SGT AK testified that after spending an hour and a half “trying to defend, deflect, and dismiss whatever he was trying to make happen”, she felt that she “just had to let whatever was about to happen happen, and just survive until it was done.” During the sex, SGT AK testified she “laid as still as possible to give no indication that [she] wanted it to happen,” and eventually started crying. When appellant asked “you don’t want this do you?” AGT AK shook her head no, but appellant said something along the lines of “I’m sorry, I can’t stop,” and continued to have sex with her. SGT AK admitted on cross-examination that the sex was not forceful and she never directly said “stop” or “no.” Appellant contrastingly testified that there was mutual kissing and touching, including putting his finger in SGT AK’s vagina, but there was no penile penetration.
SSGT Rice testified that he had a conversation with appellant approximately two years early, in which appellant said he had a girl over to his house and “was killing her out” while she was saying “No, Papi, no.” SSG Rice testified that he understood the language to reference a consensual sexual act and that “No, Papi, no” was a Hispanic term relating to a consensual encounter, and finally, that SGT AK was not Hispanic.
Appellant raises three issues on appeal, two of which the court addressed: (1) whether the evidence is legally and factually insufficient; and (2) whether the military judge abused his discretion in allowing the testimony of SSG Rice.
2. Legal Sufficiency
In reviewing legal sufficiency, the Court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 219 (1979). Recognizing this low threshold, the Court found appellant’s conviction legally sufficient.
3. Testimony of SSG Rice
Appellant also challenged the military judge’s decision to admit the testimony of SSG Rice, objecting to its logical and legal relevance. The government originally submitted that SSG Rice “would testify that roughly around the time of the charged assault, appellant described a sexual encounter wherein he continued to have sex with a female over her objections” which met the relevance standard under Mil. R. Evid. 401 as it: (1) had “any tendency” to support a finding that appellant committed the charged assault; and (2) was offered in relation to the central issue in dispute in the case.
While the Court admitted the actual testimony may not have been as relevant as the proffer, the Court found that “its probative value was still not substantially outweighed by the danger of confusing the military judge” and did not “distort rather than aid accurate fact finding.”
After weighing the strength of the prosecution’s case, the strength of the defense’s case, the materiality of the evidence in question, and the quality of the evidence, the Court further found that appellant suffered no prejudice from the testimony being admitted. The Court determined that the government had the stronger case due to the finding that SGT AK was more credible than appellant. Most importantly, the Court found that “SSG Rice’s brief testimony was marginal at best and likely had little, if any, impact on the military judge’s findings.”
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