The NMCCA affirmed the findings and sentence of Lance Corporal Jonathan Quezada, finding no material prejudice to his case.
Quezada opinion here.
Appellant was tried before officer and enlisted members during a general court-martial. Appellant, contrary to his pleas, was convicted of: 1) one specification of violating a lawful general order by providing alcohol to a minor; 2) one specification of sexual assault by bodily harm; and 3) one specification of abusive sexual contact by bodily harm under Articles 92, 107, and 120, UCMJ. Appellant was sentenced to confinement for six years and a dishonorable discharge.
Appellant appealed to the NMCCA on the grounds that: 1) the military judge erred by providing members an instruction on false exculpatory statements; 2) the military judge erred in instructing the members to disregard Appellant’s unsworn comments on his potential deportation as a result of the conviction; 3) the military judge erred in admitting, over defense’s objection, the victim’s prior statements to the SANE as a prior consistent statement under Military Rule of Evidence 801(d)(1)(B)(ii); and 4) the promulgating order erroneously failed to reflect that Specifications 1 and 4 of Charge III were withdrawn and dismissed after arraignment contrary to Rule for Court-Martial 1114(c).
Appellant gave his wife’s minor sister (victim) alcohol and sexually assaulted her while sharing a bed with her late at night in his home. After he assaulted her, the victim told Appellant’s wife who confronted him about it. Appellant asked his wife what the victim had said, asked what she was talking about, and stated a DNA test would turn out negative. The base police arrived, and the victim received DNA testing and made statements to a Sexual Assault Nurse Examiner (SANE) and NCIS. These initial statements incriminated Appellant. However, a week later, the victim contacted NCIS and wanted to stop the case because she claimed it was “consensual.” However, at trial, the victim testified consistently with the initial statement to the SANE and NCIS that it was not consensual. Appellant also gave a false statement to NCIS.
As to the first assignment of error, the NMCCA held that the military judge did not err when they gave the members an instruction on false exculpatory statements. They reasoned that the judge gave a standard instruction for this issue, and that false statements by an accused…may themselves tend to show guilt. The NMCCA stated that Appellant did not make a general denial of criminal wrongdoing, but rather he affirmatively denied specific actions he was accused of. They reasoned further that members “can infer that an innocent person does not ordinarily find it necessary to invent or fabricate a voluntary explanation or statement tending to establish his innocence.”
As to the second assignment of error, the NMCCA held that the military judge did not abuse his discretion when he instructed the members to disregard the collateral consequence of Appellant’s unsworn statement about his possible deportation. The NMCCA reasoned that while Appellant could state that he may be deported, a collateral consequence, the military judge was equally allowed to instruct the members to disregard such unsworn statement. Instructing this would not be detrimental to Appellant because the sentencing authority would not have any control over his deportation, with or without a punishment, additionally this argument would likely confuse the members.
As to the third assignment of error, the NMCCA held that the military judge did not err in admitting the Victim’s prior consistent statement because it satisfied Mil. R. Evid. 403 and 801(d)(1)(B)(ii) in that: 1) Victim told the SANE that Appellant carried her upstairs, but at trial she stated that she walked up the stairs; 2) the victim did not tell the SANE she was bit on the ear, but testified to it in trial and was corroborated by the DNA; and 3) the SANE testified that the swab was taken because of the statement victim gave to the SANE; 4) her credibility was attacked as being inconsistent, and fell into “another ground” in order to fix the statement; and 5) the victim’s statement was actually relevant to rehabilitate her credibility. Additionally, there was a high probative value in victim’s first statement to the SANE in order to rehabilitate her credibility as a witness, and it was not an inflammatory statement. Further, the statement was corroborated by the positive DNA sample taken from the victim that matched Appellant as her assailant. The NMCCA, acknowledging the above, held that there was no danger of unfair prejudice, confusion of the issues, misleading the members, causing undue delay, or wasting time.
10 U.S.C. §§ 892, 907, 920 (2016).
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