United States v. Private First Class TIMOTHY J. EVANS ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL, BROOKHART, and RODRIGUEZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class TIMOTHY J. EVANS
United States Army, Appellant
ARMY 20180651
Headquarters, Fort Bragg
Fansu Ku, Military Judge
Lieutenant Colonel Jeffrey S. Thurnher, Staff Judge Advocate
For Appellant: Captain Loraima Morciglio, JA; Allison R. Weber, Esquire (on
brief); Captain Thomas J. Travers, JA; Allison R. Weber, Esquire (on reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Reanne R. Wentz, JA (on brief).
29 October 2020
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .
RODRIGUEZ, Judge:
Appellant, a married father of three children, engaged in a gang-style sexual
assault of a fellow soldier, Private First Class (PFC) HS, along with three other
soldier–confederates, Specialist (SPC) Anthony Rodriguez, PFC Brody S. Blaker,
and PFC Adam T. Leathorn. Following the sexual assaults of PFC HS, appellant,
SPC Rodriguez, and others exchanged messages and hatched a plan about how to
evade justice for their actions by misleading law enforcement. The plan failed, and
all four soldiers were eventually prosecuted and convicted for assaulting PFC HS.
For his misconduct, an enlisted panel sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of conspiracy to
obstruct justice and one specification of sexual assault, in violation of Articles 81
and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 920 (2016)
EVANS—ARMY 20180651
[UCMJ]. With a penalty landscape that included possible confinement for thirty-
five years, the members sentenced appellant to a dishonorable discharge,
confinement for fifteen years, forfeiture of all pay and allowances, reduction to the
grade of E-1, and a reprimand. The convening authority approved the sentence as
adjudged.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises a multitude of errors, with additional issues embedded throughout his brief.
While none of them merit relief, we address two, specifically appellant’s claim that
his conviction for conspiracy to obstruct justice is factually and legally insufficient
and his claim that his sentence is disproportionate ly severe as compared to the
sentences adjudged at his associates’ courts-martial. 1
BACKGROUND
A. The sexual assaults of PFC HS.
On 9 June 2017, appellant attended a party at SPC Rodriguez’s residence.
Other attendees included PFCs Blaker, Leathorn, HS, and SJ. At the party, PFC HS
consumed beer and liquor. She became severely intoxicated to the point where she
needed assistance moving around and lost memory for the latter portion of the
1
We have given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and
find them to be worthy of neither discussion nor relief . We have also given full and
fair consideration of appellant’s “shotgun blast of alleged errors” claiming that his
trial defense team provided ineffective assistance of counsel. United States v. Myer,
ARMY 20160490, 2019 CCA LEXIS 13, *13 (Army Ct. Crim . App. 10 Jan. 2019)
(mem. op.). As a reviewing court, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. ”
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). We are also “constrained by the principle
that strategic choices made by trial defense counsel ,” including which witnesses to
call and what objections to make, are “‘virtually unchallengeable’ after thorough
investigation of the law and the facts rel evant to the plausible options.” United
States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (quoting Strickland, 466 U.S. at
690–91). Having considered the entire record, along with the affidavits of
appellant’s two trial defense counsel submitted pursuant to court order, we find
appellant fails to establish either deficient performance or prejudice. See United
States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at
687) (placing the burden on an appellant to demonstrate both deficient performance
and prejudice).
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evening. After PFC HS became intoxicated, SPC Rodriguez led her to his bedroom
to fulfill his plan to have sex with her.
Specialist Rodriguez helped PFC HS undress because she was not coordinated
enough to do it herself. He then engaged in sexual intercourse with PFC HS who, at
that point, was not responsive. Private First Class Blaker then entered the room.
First he penetrated PFC HS’s mouth with his p enis; he then penetrated her vagina
with his penis.
After PFC Blaker finished, appellant and PFC Leathorn , in turn, penetrated
PFC HS’s vagina with their penises. Private First Class HS remained non-
responsive throughout the multiple sexual assaults. After all of the soldiers were
finished assaulting PFC HS, PFC Blaker helped PFC HS get dressed and escorted her
out of the bedroom. Once in the hallway, PFC HS fell over. Private First Class
Blaker helped her up and moved her to his truck. Appellant had already left SPC
Rodriguez’s residence by the time PFC Blaker departed with PFC HS.
B. The efforts to cover it up.
In the months that followed, rumors started to spread around the unit
concerning the events of 9 June 2017. Fearing what a law enforcement investigation
into those events might uncover, SPC Rodriguez convened a meeting to try to get
everyone on the same page. Appellant was not present for the in -person meeting,
but was looped into the plan via a nearly two -hour group text message exchange that
occurred on 27 September 2017. Specifically, the group agreed that, if questioned
by law enforcement, they would say PFC HS became intoxicated and slept on
appellant’s bed. Specialist Rodriguez reminded the group that if any of them said
“something other than the story or admit to anything we are all literally fucked.”
The group also discussed what to tell law enforcement concerning who was
drinking alcohol at SPC Rodriguez’s party. Twenty minutes into the group text
conversation, appellant sent a message to the group asking, “So if they ask if we saw
not only [PFC HS] drinking but others ? Yes or no ?” Specialist Rodriguez replied
to appellant with, “Yes.” Appellant then responded to SPC Rodriguez with, “Ok,”
and SPC Rodriguez sent a group text message indicating that PFC SJ (who attended
the party but did not sexually assault PFC HS), had to say that he was not drinking
at the party because “a sober witness will really help everything go smooth.”
When subsequently questioned by law enforcement, SPC Rodriguez initially
lied by providing the previously agreed-upon story. Later in the interview, however,
he changed his version of events.
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C. The trials and sentences of appellant’s co-actors.
As the law enforcement investigation proceeded, the walls quickly began to
close in on appellant and his fellow assailants.
Recognizing the gravity of the situation, SPC Rodriguez acted first and
secured a deal with the convening authority. He agreed to plead guilty to sexually
assaulting PFC HS and provide testimony against appellant and PFCs Blaker and
Leathorn. In exchange, the convening authority agreed to a quantum of confinement
of no more than six months. On 5 June 2018, SPC Rodriguez was convicted,
consistent with his pleas, of one specification of sexual assault against PFC HS . The
military judge adjudged a sentence that included confinement for fifteen years,
though the convening authority, consistent with the pretrial agreement, approved
only six months of confinement.
Private First Class Blaker’s court-martial occurred next. After entering mixed
pleas, PFC Blaker was convicted of two specifications of sexual assault against PFC
HS, one specification of conspiracy, and one specification of obstructing justice. On
16 November 2018, the members adjudged a sentence that included confinement for
two years.
Appellant was tried after PFC Blaker’s court -martial concluded. Private First
Class Leathorn was the last of the group to stand trial. At his fully contested
members trial, PFC Leathorn was convicted of one specification of sexual assaulting
PFC HS, two specifications of conspiracy, and one specification of obstructing
justice. On 23 January 2019, the members adjudged a sentence that included
confinement for five years.
All four soldiers received mandatory dishonorable discharges.
LAW AND DISCUSSION
A. Appellant’s conspiracy conviction.
Appellant asserts his conviction for conspiring to obstruct justice is factually
and legally insufficient. We review these claims de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses,” we are “convinced of the accused’s guilt beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). The test for legal
sufficiency is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F.
2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The President has listed two elements for the crime of conspiracy under
Article 81, UCMJ: (1) that the accused entered an agreement with one or more
persons to commit an offense under the UCMJ; and (2) that, while the agreement
continued to exist, and while the accused remained a party to the agreement, the
accused or at least one of the co-conspirators performed an overt act for the purpose
of bringing about the object of the conspiracy. Manual for Courts-Martial, United
States (2016 ed.) [MCM], pt. IV, ¶ 5.b.(1) (emphasis added).
Concerning the first element of the agreement, the MCM elaborates:
The agreement . . . need not be in any particular form or
manifested in any formal words. It is sufficient if the
minds of the parties arrive at a common understanding to
accomplish the object of the conspiracy, and this may be
shown by the conduct of the parties.
MCM, pt. IV, ¶ 5.c.(2). Our superior court has further stated that an agreement can
be “silent, . . . ‘tacit[,] or [only a] mutual understanding between the parties.’”
United States v. Whitten, 56 M.J. 234, 236 (C.A.A.F. 2002) (quoting United States v.
Barnes, 38 M.J. 72, 75 (C.M.A. 1993)) (alterations in original). The “existence of a
conspiracy is generally established by circumstantial evidence and is usually
manifested by the conduct of the parties th emselves.” United States v. Matias, 25
M.J. 356, 362 (C.M.A. 1987) (citing United States v. Jacobs, 451 F.2d 530, 535 (5th
Cir. 1971)). It “need not be expressed but need only be implied.” Id. Finally, “a
conspirator need not be a member of the scheme from its inception, but he may join
it along the way.” Id. (citing United States v. Jackson, 20 M.J. 68, 69 (C.M.A.
1985)).
Concerning the second element of the overt act, the MCM states:
The overt act must be independent of the agreement to
commit the offense; must take place at the time of or after
the agreement; . . . and must be done to effectuate the
object of the agreement.
MCM, pt. IV, ¶ 5.c.(4)(a).
Here, the government was required to prove that appellant entered into an
agreement with SPC Rodriguez and others to commit the offense of obstruction of
justice and that at or after the time of the agreement, SPC Rodriguez committed an
overt act in furtherance of the conspiracy by communicating a plan to the group to
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lie to law enforcement about the events of 9 June 2017. We conclude the evidence is
both factually and legally sufficient to sustain appellant’s conviction.
1. The agreement.
Reading SPC Rodriguez’s testimony and reviewing the text messages
exchanged between SPC Rodriguez, appellant, and others, it is clear to us that the
purpose of the text message discussion was to concoct a standardized —and false—
version of events that all participants would, if necessary, convey to law
enforcement in order to mislead law enforcement. The re cord is unclear as to when
the initial in-person meeting occurred between SPC Rodriguez and the others,
though it is clear that appellant did not attend that meeting in person. Assuming
appellant did not join the agreement by virtue of his absence from th e in-person
meeting, we nevertheless conclude he joined the agreement through his receipt,
acknowledgement, and active participation in the text message discussion on 2 7
September 2017. From the opening text message admitted into evidence, the
purpose of the discussion was clear—to get everyone on the same page.
Even if appellant’s participation in the discussion by responding and asking
clarifying questions was not enough to constitute “express” evidence of his joining
the agreement, we conclude his joining the agreement was at least “implied.”
Matias, 25 M.J. at 362. We further conclude that appellant’s affirmative action of
replying and asking clarifying questions about what to say and how to answer
questions permits a reasonable inference that he u nderstood and adopted the content
of the previous messages. Reading the exchanges between the parties, the evidence
shows that appellant and the other parties had “arrive[d] at a common understanding
to accomplish the object of the conspiracy,” specifical ly to obstruct justice by
conveying to law enforcement a false version of events. MCM, pt. IV, ¶ 5.c.(2).
2. The overt act.
We next consider whether SPC Rodriguez committed an overt act in
furtherance of the conspiracy. Reading the text message discus sion, it shows SPC
Rodriguez not only originated the plan to lie to law enforcement, but also
communicated the plan to the others in the group and refined the plan throughout the
discussion. By communicating the plan to the others and adding additional de tails
and instructions as to how the others should answer specific questions, SPC
Rodriguez undoubtedly took affirmative steps to “effectuate the object of the
agreement,” specifically to obstruct justice by misleading law enforcement. MCM,
pt. IV, ¶ 5.c.(4)(a).
While the agreement and overt act occurred nearly simultaneously, we are
satisfied the overt act occurred independent of the agreement itself. Consequently,
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element two of the offense was satisfied. Therefore, we find appellant’s conspiracy
conviction is both factually and legally sufficient. 2
B. Appellant’s sentence.
We review sentence appropriateness de novo. United States v. Bauerbach, 55
M.J. 504 (Army Ct. Crim. App. 2001) (citing United States v. Cole, 31 M.J. 270, 272
(C.M.A. 1990)). We “may affirm only such findings of guilty and the sentence or
such part or amount of the sentence as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” UCMJ art. 66(c)
(2016). “When we conduct a sentence appropriateness review, we review many
factors to include: the sentence severity; the entire record of trial; appellant’s
character and military service; and the nature, seriousness, facts, and circumstances
of the criminal course of conduct.” United States v. Martinez, 76 M.J. 837, 841–42
(Army Ct. Crim. App. 2018).
One of the “many aspects of sentence appropriateness” is so -called “sentence
comparison.” Id. at 840 (citing United States v. Snelling, 14 M.J. 267, 268 (C.M.A
1982)). We consider sentence comparison in the overall rubric of sentence
appropriateness only in “those rare instances in which sentence appropriateness can
be fairly determined only by reference to disparate sentences adjudged in closely
related cases.” Id. (internal quotation marks and citations omitted). An appellant
seeking sentence comparison relief must show that his sentence is “highly disparate”
from a “closely related” defendant’s sentence. Id. If an appellant is able to show
both, the burden shifts to the government to provide a rational basis for the
disparity. Id. However, an appellant with an otherwise appropriate sentence is not
necessarily entitled to a “windfall” just because a co-actor received a more lenient
sentence. Id. at 841–42.
2
We note The Specification of Charge I alleges that appellant conspired with
himself. The military judge, however, did not instruct the panel that they were
required to find that appellant conspired with himself. Appellant did not object to
the military judge’s findings instructions on this basis but contends for the first time
on appeal that the military judge erred by failing to instruct the panel that it was
required to consider whether appellant conspired with himself. We disagree. First,
appellant’s failure to object to this finding instruction constitutes waiver. See
United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020). Second, even assuming
plain-error review applied, we find no clear and obvious error as it is well -settled
that one cannot conspire with himself. See United States v. Valigura, 54 M.J. 187,
188 (C.A.A.F. 2000).
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We first address whether appellant’s actions were closely related with those
of SPC Rodriguez and PFCs Blaker and Leathorn. This step in the analysis does not
detain us long. Unfortunately, appellant’s case is not the first in which multiple
soldiers participated in a collective sexual assault of a victim. See Martinez, 76 M.J.
at 839–40; United States v. Macario, ARMY 20160760, 2018 CCA LEXIS 494
(Army Ct. Crim. App. 12 Oct. 2018) (mem. op.). In both of those cases, we found
the conduct of the co-actors closely related. Here, appellant and three other soldiers
took turns sexually assaulting PFC HS in the same location, on the same evening,
and in a similar manner. Accordingly, the government concedes, and we conclude,
that their actions are “closely related.”
Next we address whether appellant’s adjudged sentence was highly disparate
in comparison to SPC Rodriguez’s and PFCs Blaker’s and Leathorn’s adjudged
sentences. “Whether a sentence is highly disparate is determined by comparison of
the adjudged sentences taking into account the disparity in relation to the potential
maximum punishment.” Martinez, 76 M.J. at 841 (citations omitted). Here, the
panel sentenced appellant to fifteen years’ confinement against a maximum of thirty -
five years’ confinement, representing 42.8% of the maximum period.
Specialist Rodriguez’s adjudged sentence included confinement for fifteen
years. The maximum sentence authorized based upon SPC Rodriguez’s pleas was
confinement for thirty years. As such, SPC Rodriguez’s adjudged senten ce of
confinement represented 50% of the maximum period. We find appellant’s sentence
is not highly disparate compared to SPC Rodriguez’s adjudged sentence.
Private First Class Blaker’s adjudged sentence included confinement for two
years against a maximum of one-hundred years, representing 2% of the maximum
period. PFC Leathorn’s adjudged sentence included confinement for five years
against a maximum of seventy years, represen ting 7% of the maximum period.
Concerning PFCs Blaker’s and Leathorn’s sentences, the government acknowledges
that appellant has “likely met his burden to prove that his sentence is highly
disparate.” We agree. As a percentage of the maximum period of confinement,
appellant’s sentence is twenty-one times higher than PFC Blaker’s and six times
higher than PFC Leathorn’s. As such, based on the facts and circumstances of this
case, we find appellant’s sentence is highly disparate when compared to PFCs
Blaker’s and Leathorn’s sentences.
Having determined appellant’s case is closely related and, with respect to
PFCs Blaker and Leathorn, that his sentence is highly disparate, we next address
whether the government has provided a rational basis for the disparity. The
government argues that the defense’s expert witness in mitigation pr ovided a
rational basis.
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