The AFCCA affirmed the findings and sentence of Senior Airman Damon P. Linck, finding no error materially prejudicial to his substantial rights.
Linck opinion here.
Linck opinion here.
Appellant was charged with two specifications of rape for orally and digitally penetrating SrA JC’s vulva while she was physically restrained, one specification of sexual assault by causing her bodily harm by penetrating her vulva with his penis, and three specifications of aggravated sexual contact by touching her genitalia, buttocks, neck, and face with an intent to gratify his sexual desire while restraining her to his bed.
On 9 September 2017, SnA Linck (Appellant) had four airmen, including SrA JC (the victim), over to his apartment to drink and play games. While there, SrA JC drank a relatively large amount of alcohol in a couple of hours. A series of events led to Appellant performing oral sex on SrA JC and the other female Airmen present, SrA MM, while another male Airmen, A1C RH, lightly choked SrA MM with his hand and choked SrA JC with a dog leash. Shortly thereafter, the activity stopped and the airmen prepared to leave; however, SrA JC laid on the couch “really out of it” and refusing the others’ offers for rides home. All the Airmen beside SrA JC and Appellant left and SrA JC fell asleep on Appellant’s couch.
The next thing SrA JC remembered was being handcuffed to Appellant’s bed with Appellant slapping and choking her. She testified she screamed and told Appellant to stop and that it hurt, but Appellant told her that he liked it when she screamed and held down her legs while he continued to orally and digitally penetrate her. At some point, Appellant asked if SrA JC just wanted to go to sleep, which she answered in the affirmative, then rolled over, and fell asleep. She awoke again to Appellant choking and slapping her, orally and digitally penetrating her, attempting to penetrate her anus with his fingers, and finally penetrating her vulva with his penis. Appellant then ejaculated on her and fell asleep, at which point SrA JC returned to the couch and attempted to reach SrA JT at 0312 hours, but he did not pick up.
SrA JC testified she then went to Appellant’s bathroom and took pictures of her injuries. At 0525, SrA JT called SrA JC back and came to pick her up. Later that day, SrA JC had a sexual assault forensic exam taken that disclosed bruising on SrA JC’s neck and buttocks; swelling on her clavicle; abrasions on her chest and genitals; and fissures to her anal folds. The nurse testified that the bruises on SrA JC’s buttocks and neck had circular patterns which could indicate they were made by fingers. Appellant’s DNA was also found in semen retrieved from SrA JC’s vagina. Military authorities then searched Appellant’s apartment and found a restraint system of straps with Velcro cuffs which SrA JC’s DNA was found on. Lastly, Appellant sent SrA JC a Facebook Messenger message at 0900 that day asking “You make it home?” to which she did not respond. About four hours later, Appellant also sent “So I got a little too drunk last nifgt . . . hope I didn’t overstep in boundaries . . . sorry.” A second message read, “It was a good time though. Thanks for hanging out!”
Appellant raises two issues on appeal: (1) the evidence was legally and factually insufficient to support a finding of guilt; and (2) the military judge erred by denying the Defense’s request for the appointment of an expert consultant in the field of toxicology. The Court additionally considered (3) whether Appellant is entitled to relief for facially unreasonable post-trial delay.
Appellant argued that SrA JC must have lied about the level of alcohol she consumed because there was “no evidence of . . . physical indicia of the level of intoxication” she claimed. The court found this argument unpersuasive and concluded despite the amount of alcohol SrA JC actually consumed, “her in-court testimony is corroborated by other evidence in this case, dramatically reducing the relevance of her actual degree of intoxication.” The court further found no indication SrA JC lied about the amount of alcohol she drank and rather determined that “a rational factfinder could conclude any inconsistencies in SrA JC’s recollection of her precise alcohol intake are little more than the product of the alcohol she did consume.”
Appellant next argued that SrA JC’s injuries were “minor” and “cannot be conclusively ascribed to [Appellant]” due to the fact she was also choked by A1C RH. Appellant also pointed to SrA JC’s claim that Appellant slapped her “dozens of times” but the medical examiner didn’t document facial injuries and the pictures she took of herself showed only a slight redness to her face. The court found this argument stood “in stark contrast” to the evidence actually introduced, including medical photographs and eyewitness testimony indicating pronounced bruising. The court also noted that the nurse examiner observed round marks on SrA JC’s neck that were similar to those on her buttocks, but “even if some, or indeed all, of the bruising on [her] neck was caused by A1C RH, such would not absolve Appellant of his criminal culpability for later grasping SrA JC’s neck against her will.”
Appellant also argued that SrA JC’s credibility is harmed by “her erroneous testimony that she had not previously interacted with Appellant before the day of the party; which bathroom she took photographs of her injuries in; and her reason for not leaving Appellant’s apartment with the other three Airmen.” While acknowledging minor inconsistencies in the evidence regarding these issues, “these three areas of testimony are peripheral to the charges in this case and they collectively indicate simple mistakes more than they demonstrate intentional dishonesty.”
Lastly, while Appellant offers multiple theories as SrA JC’s motives to fabricate the sexual assault, the Court found no evidence to support the potential motives Appellant pointed to. Viewing all of the evidence in the light most favorable to the Prosecution, the court found that “a rational trier of fact could find the essential elements of the offenses Appellant was convicted of beyond a reasonable doubt” and therefore, found the conviction legally sufficient. The court also concluded that they themselves were convinced of Appellant’s guilt beyond a reasonable doubt and therefore, found the conviction factually sufficient.
Appellant argued on appeal that a toxicology expert’s assistance was needed in order to assess SrA JC’s credibility and the “physical possibility of [her] allegations.” In addition to noting that Appellant was appointed a forensic psychologist who could assist in understanding alcohol’s impacts on memory, the court rationalized that since the evidence at trial “did not precisely establish how much alcohol SrA JC consumed . . . a toxicologist would be left generally explaining the effects of alcohol and how the body metabolizes it without being able to specifically relate those concepts to SrA JC.” The court further determined that there was superior witness testimony as to SrA JC’s level of intoxication and that Appellant failed to “cogently describe” what additional “gap in knowledge” an expect toxicologist could provide. Ultimately, the court found that Appellant failed to meet his burden and the military judge did not err in denying Appellant’s request.