United States v. Private E-1 MARCUS A. PONZO ( 2015 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges
    
                               UNITED STATES, Appellee
                                            v.
                             Private E-1 MARCUS A. PONZO
                              United States Army, Appellant
    
                                       ARMY 20140018
    
                                 Headquarters, Fort Bragg
                    Kirsten V. Brunson, Military Judge (arraignment)
                         Deidra J. Fleming, Military Judge (trial)
                  Colonel Paul S. Wilson, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (recommendation)
    
    
    For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
    Patrick A. Crocker, JA (on brief).
    
    For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
    Scott L. Goble, JA (on brief).
    
                                       3 December 2015
    
                                  -----------------------------------
                                   SUMMARY DISPOSITION
                                  -----------------------------------
    
    PENLAND, Judge:
    
           A military judge sitting as a general court-martial convicted appellant,
    contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of
    Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge
    sentenced appellant to a bad-conduct discharge and sixteen months confinement.
    The convening authority approved the adjudged sentence.
    
          We review this case under Article 66, UCMJ. Of appellant’s three
    assignments of error, the following merits discussion but no relief:
    
                 THE MILITARY JUDGE ERRED BY ADMITTING
                 APPELLANT’S PRETRIAL STATEMENT REGARDING
                 THE CHARGED SEXUAL ASSAULT WHERE THE
                 PORTION  OF   THE  STATEMENT   INDICATING
    PONZO — ARMY 20140018
    
                 APPELLANT ENGAGED IN SEX WITH THE VICTIM
                 WAS NOT CORROBORATED BY ANY INDEPENDENT
                 EVIDENCE IN ACCORDANCE WITH MILITARY RULE
                 OF EVIDENCE 304(g).
    
           This court-martial stemmed from appellant’s misconduct at a drunken party at
    a fellow soldier’s apartment. Sergeant (SGT) JP attended the party and testified at
    trial. Many soldiers from appellant’s unit were at the party, including the recently-
    assigned Private (PV2) AR, and all were drinking heavily. Private AR repeatedly
    lost consciousness and fell. Appellant and another soldier moved her into the
    bathroom, where she urinated on herself while still clothed. Private AR was then
    placed in the bathtub, and appellant showered her off while she was clad in her
    underwear and a shirt. 1
    
           All except appellant left PV2 AR alone in the bathroom. According to his
    sworn statement to a Criminal Investigation Command (CID) agent, 2 appellant sat on
    the edge of the bathtub, concerned that she might swallow her tongue in her
    inebriated state (“I just wanted to make sure I didn’t need to call the doctors.”). He
    left and returned to the bathroom and PV2 AR’s side multiple times. Ultimately,
    appellant brushed the hair from PV2 AR’s face, and she looked up at him with an
    “emotionless” expression, “[k]ind of like a thousand-yard stare.” PV2 AR placed
    her hand on appellant’s genitals, in response to which he masturbated her, entered
    the bathtub, pulled aside her underwear, and engaged in sexual intercourse with her.
    Seeking to ensure PV2 AR was aware of what was happening, he asked her to
    confirm his identity—during intercourse—and he asked her to confirm that she knew
    what was happening; PV2 AR did so. After appellant ejaculated and cleaned himself
    and PV2 AR, she lapsed into unconsciousness again. Just before leaving the
    bathroom, appellant positioned PV2 AR in the tub in a way which, to his thinking,
    would mitigate the risk of choking if she vomited.
    
          Sergeant JP’s testimony largely mirrored appellant’s CID statement: Private
    AR was extremely drunk at the party, urinating on herself, while clothed, in the
    apartment’s bathroom; multiple soldiers gathered to help PV2 AR clean herself up;
    appellant remained with PV2 AR in the bathroom when the party resumed.
    However, SGT JP did not witness the corpus delicti per se.
    
         Because appellant made no objection to the admission of his confession—he
    complains of this issue for the first time on appeal—we regard this objection
    
    
    1
      Private AR told SGT JP a couple of days later that she remembered nothing from
    the party.
    2
     The military judge admitted appellant’s statement without objection from the
    defense.
                                              2
    PONZO — ARMY 20140018
    
    forfeited absent plain error. United States v. Gladue, 
    67 M.J. 311
     (C.A.A.F. 2009);
    United States v. Smith, 
    34 M.J. 200
    , 203-04 (C.M.A. 1992).
    
           In essence, appellant now argues that independent evidence must corroborate
    the corpus delicti. Appellant cites United States v. Adams, 
    74 M.J. 137
     (C.A.A.F.
    2015), but our superior court affirmed the opposite view in that case:
    
                 The corroboration requirement for admission of a
                 confession at court-martial does not necessitate
                 independent evidence of all the elements of an offense or
                 even the corpus delicti of the confessed offense. Rather,
                 the corroborating evidence must raise only an inference of
                 truth as to the essential facts admitted.
    
    Id. at 140 (quoting United States v. Cottrill, 
    45 M.J. 485
    , 489 (C.A.A.F. 1997)). See
    also United States v. Sudbury, 2014 CCA LEXIS 747 (Army Ct. Crim. App. 30 Sept.
    2014) (mem op.). Aside from the corpus delicti, independent evidence precisely
    corroborated the following matters contained in appellant’s confession: time, place,
    opportunity, access, intoxication, and involved persons (including PV2 AR’s manner
    of dress). We have no reason to suspect that appellant falsely rendered his
    confession, and we conclude the military judge’s decision to admit it was well
    within the bounds of sound discretion and therefore not erroneous.
     
            The findings of guilty and sentence are AFFIRMED.
    
          Senior Judge HAIGHT and Judge WOLFE concur.
    
    
                                           FOR THE COURT:
    
    
    
    
                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk
                                           Clerk of
                                                 of Court
                                                    Court
    
    
    
    
                                              3
    

Document Info

DocketNumber: ARMY 20140018

Filed Date: 12/3/2015

Precedential Status: Non-Precedential

Modified Date: 12/7/2015