On August 7, 2020, the NMCCA affirmed the conviction of SgtMaj Schmidt for one specification of Article 120b(c), UCMJ, for committing a lewd act upon a 15 year old boy by indecent conduct.
SgtMaj Julian D. Schmidt was convicted of one specification of sexual abuse of a child for committing a lewd act upon a 15-year-old boy under Article 120b(c), UCMJ. united_states_v._schmidt.pdf. On appeal, the N-M. Court of Criminal Appeals considered: (1) whether the military judge erred in denying a Defense challenge for cause against a panel member; (2) whether the evidence was legally and factually insufficient to sustain Appellant’s conviction; (3) whether the military judge erred in his instructions on the definitions of “upon” and “in the presence of” in the specification; (4) whether the military judge erred in failing to instruct that Appellant’s honest but mistaken belief that the victim was asleep was a defense; (5) whether Appellant’s trial defense counsel were ineffective for failing to object to the military judge’s instructions on the definition of “upon” and “in the presence of”; (6) whether Appellant’s trial defense counsel were ineffective for failing to object to the Government forensics expert’s testimony as a violation of Appellant’s right to confront the person who conducted the actual forensic testing; and (7) whether officials at Camp Pendleton unreasonably interfered with Appellant’s ability to communicate and meet with his civilian appellate defense counsel. In a unanimous opinion, the N-M. Court of Criminal Appeals affirmed the findings and the sentence of the trial court.
Appellant argued that the military judge erred in denying their challenge for cause against SgtMaj Ortiz on the grounds of bias. The Court found no implied bias because Ortiz maintained great conviction, continence, bearing, and manner, when attesting that he was unbiased. Additionally, the court acknowledged that SgtMaj Ortiz’s potential bias creating incident occurred 40 years prior to Appellant’s trial. Taking these factors into account, the Court concluded that the military judge did not err in denying Appellant’s challenge for cause.
2. The evidence was factually and legally sufficient to sustain Appellant’s conviction
Appellant argued that there was legal and factual insufficiency in his conviction because the charged language created specific intent.Appellant further argued that because specific intent was created in the charged language, that an honest but mistaken belief of fact as to the victim’s awareness was a defense to the charge that had to be disproven beyond a reasonable doubt. The Court, utilizing multiple definitions (Blacks Law Dictionary and Meriam-Webster’s dictionary) of the Appellant’s charging language, determined that a child must have sufficient sensory connection to the conduct and awareness. Even though the Court found that a specific intent was created in the charging language, they found that the government proved all elements of the charge beyond a reasonable doubt because the evidence strongly supported that Appellant knew of the child’s awareness. Based on the Court's interpretation of the charging language, as well as establishing specific intent, the Court found the evidence to be legally and factually sufficient.
3. Appellant’s trial counsel waived any issue as to the elements of the offense
Appellant argued that the military judge erred in his instructions on the elements of the Appellant’s charge. The Court, after reviewing the record, found that the military judge asked Appellant’s counsel three times if they had any objections as to the elements of the charged offense. Having had multiple opportunities to object to the military judge’s instructions and with no such objections made, the Court concluded that the Defense waived this issue. Therefore, no instructional error existed.
4. Any deficiency in Appellant’s assistance of counsel did not undermine confidence in Appellant’s conviction
Appellant argued that his trial defense counsel was ineffective for failing to object to the military judge’s instructions on the elements of his charge and for failing to object to the testimony of the government forensics expert.The Court applied the two-part Strickland test and even assumed that Appellant’s counsel was deficient. However, even with this assumption, the Court did not believe that a change of instructions would have likely changed the result of Appellant’s trial, thus finding no prejudice. Additionally, utilizing precedent from Davis, the Court determined that not only could a substitute expert testify based on results of a lab testing that was performed by another lab technician who is unavailable at trial, but that expert testimony corroborating Appellant’s statements did not prejudice the Appellant. Given the weight of the evidence, the Court concluded that any ineffectiveness would not have affected the outcome of the trial.
Senior Judge Gatson authored the opinion, joined by Judge Stewart, concurring with Crisfield
SgtMaj Ortiz learned that a close cousin had been molested at the age of nine, this was disclosed at voir dire and occurred nearly 40 years prior.
“(1) that Appellant committed a lewd act upon Jared by engaging in indecent conduct, to wit: masturbating, intentionally done in the presence of Jared[.]”
Appellant argued that the government forensics expert violated his confrontation right.
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