The AFCCA affirmed the findings and sentence of Second Lieutenant D'Andre M. Johnson, finding no error materially prejudicial to his substantial rights.
Johnson opinion here.
Appellant was convicted of two specifications of sexual assault. Appellant’s sentence included a dismissal, confinement for ten years, and forfeiture of all pay and allowances. On appeal, Appellant raises three assignments of error: (1)whether the evidence is legally and factually sufficient to support the conviction of sexual assault against MP; (2) whether trial defense counsel provided ineffective assistance of counsel; and (3) whether Appellant suffered cruel and unusual punishment in violation of the Eighth Amendment and Article 55, UCMJ, when he was not given proper medical treatment while in confinement. Finding no error, the Court affirmed.
Appellant first became familiar with MP, who was an assistant manager at a gym, after meeting her at the fitness center. After connecting and chatting on Instagram, Appellant made plans to meet up with MP at a local bar on September 16, 2017. That evening, MP and AM were out to dinner and later connected with Appellant along with other friends. The record indicates that AM, MP, and Appellant consumed a heavy amount of alcohol. Later that evening and after the parties relocated to a friend’s (JP’s) home, MP and Appellant began to kiss while on the couch. Another friend, SrA CC, took AM to bed and remained with her. Subsequently, SrA CC was awoken by Appellant seemingly thrusting himself upon an unconscious AM. At this, SrA CC pushed Appellant off leading to an investigation and these proceedings.
I. The Law
A. The Assault of MP
To prove sexual assault by bodily harm, the law requires a showing of “any offensive touching of another, however slight, including any nonconsensual sexual act.” Additionally, consent must be freely granted by a competent individual.
Appellant argues that MP’s claim of sexual assault is unreasonable in light to the evidence and such demonstrate a reasonable mistake of fact with regard to consent. However, the timing of the two alleged assaults are of importance. The Court explains that at 3:30 AM SrA CC was awoken by Appellant’s assault of AM. By 3:45 AM, Appellant was found asleep on the couch with MP. DNA results find traces of AM’s DNA on MP’s underwear so as to indicate that Appellant assaulted MP after AM while she was asleep. As such the Court rejected Appellant’s argument saying, “we find Appellant's conviction of sexual assault against MP both legally and factually sufficient.”
B. Ineffective Assistance of Counsel
Appellant argues that trial counsel was ineffective when they (1) failed to submit a resignation-in-lieu of court-martial (RILO) request within seven days of referral of Appellant's case; (2) engaged in harassing behavior against MP; and (3) offered a theory of the case that conceded Appellant's guilt.
After evaluating each of the proffered claims, the Court found that trial counsel did not act unreasonably and that the evidence failed to support Appellant’s position. As such, the Court held that “Appellant fail[ed] to overcome the strong presumption that counsel's performance was within the wide range of reasonable professional assistance.”
C. Portions of MP's Unsworn Victim Impact Statement
While this issue was not raised by Appellant, the Court addressed whether the military judge abused his discretion by allowing portions of MP’s statement during sentencing. The Court found that the military judge applied the 403 balancing test in error, leading to the abuse. However, the Court found the admission proper under the test from Bowen which determines whether the statement had a “substantial influence” on the sentence. The Court found the admission of the statement to be appropriate.
D. Conditions of Appellant's Post-Trial Confinement
Appellant argues that he was subjected to post-trial conditions that “adversely affected him both physically and mentally. The Court explained that “the Eighth Amendment prohibits two types of punishments: (1) those 'incompatible with the evolving standards of decency that mark the progress of a maturing society' or (2) those 'which involve the unnecessary and wanton infliction of pain.” Furthermore, the Court noted that “prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.” In rejecting Appellant’s claim, the Court held that Appellant’s “fail[ure] to raise his issues to prison officials or his command, Appellant has not shown deliberate indifference by the Lowndes County Jail.” In its reasoning, the Court noted that Appellant failed to make his complaint known until after he was transferred despite a visit from command. At bottom, the Court declared that “[t]he approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred.”
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