United States v. Lopez ( 2017 )


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  •          U NITED S TATES N AVY –M ARINE C ORPS
    C OURT OF C RIMINAL A PPEALS
    _________________________
    No. 201400373
    _________________________
    UNITED STATES OF AMERICA
    Appellee
    v.
    DARIN G. LOPEZ
    Intelligence Specialist Second Class (E-5), U.S. Navy
    Appellant
    _________________________
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judge: Commander Ian K. Thornhill, JAGC, USN.
    Convening Authority: Commander, Navy Region Mid -Atlantic,
    Norfolk, VA.
    Staff Judge Advocate: Captain A.R. House, JAGC, USN.
    For Appellant: William E. Cassara, Esq.; Lieutenant Doug
    Ottenwess, JAGC, USN.
    For Appellee: Major Cory A. Carver, USMC; Major Suzanne M.
    Dempsey, USMC.
    _________________________
    Decided 18 January 2017
    _________________________
    Before P ALMER , M ARKS , and F ULTON , Appellate Military Judges
    _________________________
    This opinion does not serve as binding precedent, but may be cited
    as persuasive authority under NMCCA Rule of Practice and
    Procedure 18.2.
    _________________________
    PALMER, Chief Judge:
    At a general court-martial, a military judge convicted the appellant,
    contrary to his plea, of one specification of sexual assault in violation of
    Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. The convening
    authority approved the adjudged sentence of three years’ confinement and a
    bad-conduct discharge.
    United States v. Lopez, No. 201400373
    The appellant raises three assignments of error (AOE): (1) the evidence
    was legally and factually insufficient to sustain the conviction; (2) the trial
    defense counsel (TDC) was ineffective in failing to investigate and present
    evidence that the victim experienced memory blackouts before, during, and
    after the alleged sexual assault; and (3) the TDC was ineffective post-trial for
    failing to consult with the appellant before submitting clemency matters,
    thus entitling the appellant to a new post-trial review and action.
    Regarding the third AOE, on 7 October 2015, we returned the case for
    remand to an appropriate convening authority to order a DuBay hearing1 into
    the TDC’s post-trial efforts or, alternatively, to withdraw the original action
    and complete new post-trial processing with a substitute TDC representing
    the appellant. The convening authority completed new post-trial processing
    and again approved the adjudged sentence on 11 February 2016. On 10 May
    2016, the appellate renewed his original AOEs but raised no new error. The
    convening authority’s new, unchallenged action renders the third AOE moot.
    After reviewing the record and pleadings, we are satisfied that the
    findings and sentence are correct in law and fact and that no error materially
    prejudicial to the substantial rights of the appellant occurred. Arts. 59(a) and
    66(c), UCMJ.
    I. BACKGROUND
    The appellant and the victim, Lance Corporal (LCpl) EH were casual
    friends who first met off-base, exchanged text messages, and had gone on a
    dinner date. LCpl EH was attending her entry level service school aboard an
    Army installation and was not in the same command as the appellant. On 24
    November 2012, LCpl EH invited the appellant to join her at a nightclub.
    They socialized, and LCpl EH recalls drinking two mixed drinks and a shot of
    liquor. She became intoxicated, blacked out, and then awoke to find herself
    on a bed with the appellant on top of her engaging in sexual intercourse. She
    heard him say, “don’t worry, I used a condom”2 before she passed out again.
    LCpl EH ultimately reported the sexual assault to a Uniformed Victim’s
    Advocate and to the Army’s Criminal Investigation Command.
    II. DISCUSSION
    A. Legal and factual sufficiency
    We review questions of legal and factual sufficiency de novo. United
    States v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). The test for legal
    sufficiency is “whether, considering the evidence in the light most favorable
    1   United States v DuBay, 
    37 C.M.R. 411
    (C.M.A. 1967).
    2   Record at 131; Appellate Exhibit (AE) XX at 3.
    2
    United States v. Lopez, No. 201400373
    to the prosecution, any reasonable fact-finder could have found all the
    essential elements beyond a reasonable doubt.” United States v. Day, 
    66 M.J. 172
    , 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 
    25 M.J. 324
    , 324
    (C.M.A. 1987)). In applying this test, “we are bound to draw every reasonable
    inference from the evidence of record in favor of the prosecution.” United
    States v. Barner, 
    56 M.J. 131
    , 134 (C.A.A.F. 2001) (citations omitted).
    The test for factual sufficiency is whether “after weighing all the evidence
    in the record of trial and recognizing that we did not see or hear the
    witnesses as did the trial court, this court is convinced of the appellant’s guilt
    beyond a reasonable doubt.” United States v. Rankin, 
    63 M.J. 552
    , 557 (N-M.
    Ct. Crim. App. 2006) (citing 
    Turner, 25 M.J. at 325
    and Art. 66(c), UCMJ),
    aff'd, 
    64 M.J. 348
    (C.A.A.F. 2007). In conducting this review, we take “a
    fresh, impartial look at the evidence,” applying “neither a presumption of
    innocence nor a presumption of guilt” to “make [our] own independent
    determination as to whether the evidence constitutes proof of each required
    element beyond a reasonable doubt.” 
    Washington, 57 M.J. at 399
    . While this
    is a high standard, the phrase “beyond a reasonable doubt” does not imply
    that the evidence must be free from conflict. 
    Rankin, 63 M.J. at 557
    .
    A conviction for this sexual assault offense requires proof beyond a
    reasonable doubt of two elements: (1) that the appellant committed a sexual
    act upon LCpl EH, and (2) that LCpl EH was incapable of consenting to the
    sexual act due to impairment by an intoxicant and this condition was known
    or reasonably should have been known by the appellant. MANUAL FOR
    COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 45.a(b)(3).
    The appellant argues that the government failed to introduce sufficient
    evidence to prove LCpl EH was so impaired by intoxicants that she was
    incapable of consenting to the sexual act. Specifically, he argues the three
    drinks LCpl EH recalls consuming were insufficient to cause the requisite
    impairment. The appellant also points to a drug screen of LCpl EH’s urine
    occurring less than two days after the assault that tested negative for any
    drugs that could have contributed to LCpl EH’s impairment. The appellant
    argues LCpl EH’s memory gaps and varying recollection of details before,
    during, and after the assault indicated she was either too intoxicated to form
    memories of the time of the alleged offense (yet not incapacitated) or was
    being untruthful in recounting her memories of the evening. Finally, the
    appellant asserts that because LCpl EH reported only having three drinks,
    and because she apparently departed the bar and went to his third-floor
    walk-up apartment under her own power, he had a reasonable belief that she
    consented to the sex acts. We disagree.
    3
    United States v. Lopez, No. 201400373
    The military judge issued special findings, which we find are fully
    supported by the evidence. The special findings indicate the military judge
    correctly understood the burden of proof and the elements the government
    was required to prove in this case. In weighing the evidence, we too find LCpl
    EH to be highly credible as she testified to: feeling dizzy and extremely
    intoxicated; blacking out while “just standing there”3 in the bar; waking up
    unable to move or speak; finding the appellant on top of her with his penis in
    her vagina; and hearing the appellant tell her, “don’t worry, I used a
    condom,”4 before she passed out again. LCpl EH awoke the following
    morning, alone, in the same room; she felt sick to her stomach, and her head
    hurt and was spinning; she was still wearing her dress, but a sleeve was
    pulled down and the bottom of the dress was “bunched up across her waist;”5
    and she was lying in vomit and urine.6 The evidence shows, and the military
    judge found, that LCpl EH immediately took a shower still wearing the dress.
    While showering she noticed bite marks on her breasts and scratches on her
    back that had not been there the day before. After she showered, LCpl EH sat
    on the couch in the living room, wrapped in a towel while her dress was in
    the dryer. Although she could hear the appellant’s voice, she did not see him
    in the apartment that morning. Eventually, without waiting for her dress to
    fully dry, she re-donned it and departed in a taxi. The taxi driver testified
    that LCpl EH appeared confused, desperate, and to have been crying. The
    driver offered to take LCpl EH to the police or hospital, but LCpl EH
    declined.
    Finally, a subsequent search of the appellant’s apartment revealed two
    used condoms in the trash, and the appellant stipulated the semen DNA
    profile inside both condoms matched his and the DNA profile from the
    outside of both condoms matched LCpl EH.7
    Based on all the testimonial evidence presented at trial, and in particular
    LCpl EH’s testimony that the appellant’s penis was in her vagina, coupled
    3   Record at 129; AE XX at 3.
    4   Record at 131; AE XX at 3.
    5   Record at 133; AE XX at 3.
    6  The appellant takes issue with this conclusion, arguing that LCpl EH only “[a]t
    the time . . . believed [the bed] was wet with urine” but that she did not know it was,
    in fact, urine. Reply Brief on Behalf of Appellant dated 1 Sep 2015 at 3; Record at 159
    and 162; AE XX at 3. We conclude that LCpl EH passing out in her own urine is a
    permissible inference reasonably drawn from the evidence. RULE FOR COURTS-
    MARTIAL 918 (c), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012), Discussion.
    7   Prosecution Exhibit (PE) 4 at 2; AE XX at 4.
    4
    United States v. Lopez, No. 201400373
    with the corroborating physical and forensic [DNA] evidence,8 we easily find
    the charged sexual act occurred. Moreover, like the military judge, we find
    that the appellant’s statement to LCpl EH, “don’t worry I used a condom,”
    while engaged in sexual intercourse with her, established that LCpl EH was
    at least initially not aware the sexual act was taking place because she was
    unconscious as a result of her intoxication—thus unable to consent.9
    We are unpersuaded by the appellant’s argument that the government
    was required to prove exactly how LCpl EH became intoxicated on the three
    drinks she recalls consuming. The government must only prove that her
    intoxication rendered her incapable of consenting and that her condition was
    known or reasonably should have been known by the appellant. The law is
    well settled that a “sleeping, unconscious, or incompetent person cannot
    consent.” Art. 120(g)(8)(B), UCMJ; United States v. Pease, 
    74 M.J. 763
    , 770,
    (N-M. Ct. Crim. App. 2015). We are convinced beyond a reasonable doubt that
    LCpl EH was incapable of consenting when the appellant engaged in sexual
    intercourse with her. That she was incapable of consenting is supported by
    her testimony that she consumed alcohol, quickly became intensely
    intoxicated, was unable to remember how she left the bar and arrived at the
    appellant’s apartment, awoke to the appellant engaging in sexual intercourse
    with her, passed out, and awoke again lying in urine and vomit,10 still
    wearing the dress from the previous evening. And, most importantly, we find
    the appellant’s statement that he was wearing a condom, made in the midst
    of sexual intercourse, establishes his awareness that she had been unable to
    comprehend his sexual advances and consent to his penetration.
    Thus, after weighing all the evidence, the pleadings, and having made
    allowances for not having personally observed the witnesses, we are
    convinced beyond a reasonable doubt of the appellant’s guilt.
    8   PE 4 at 2.
    9 We agree with, without deferring to, the military judge’s rationale that “[b]y
    attempting to ‘comfort’ her anticipated fears upon discovering he was performing
    sexual intercourse on her, [the appellant’s] statement, including the word ‘used’ in
    the past tense, illustrates [the appellant] was aware LCpl E.H. was not able to
    consent, and in fact did not consent, to the sexual act from the outset.” AE XX at 5.
    10 We are unpersuaded that the substance in LCpl EH’s hair was semen or
    another bodily fluid discharged during sexual acts, particularly in light of the
    appellant’s use of two condoms.
    5
    United States v. Lopez, No. 201400373
    B. Ineffective assistance of counsel
    The appellant argues his TDC’s failure to develop or present evidence
    that LCpl EH may have experienced a memory blackout before, during, and
    after the sexual assault constituted ineffective assistance of counsel. The
    appellant also faults the TDC’s failure to “investigate whether any of the
    drugs . . . in [LCpl EH’s] medical records could have interacted with the
    alcohol she consumed to cause memory blackouts.”11
    We review claims of ineffective assistance of counsel de novo. United
    States v. Akbar, 
    74 M.J. 364
    , 379 (C.A.A.F. 2015). The appellant must clear a
    high bar to prevail by showing: (1) that his counsel’s performance was
    deficient, and (2) that, but for his counsel’s deficient performance, there is a
    reasonable probability that the result of the proceeding would have been
    different. 
    Id. (citing Strickland
    v. Washington, 
    466 U.S. 668
    , 688, 694 (1984)).
    The first prong of the Strickland test requires the appellant to show that
    counsel’s performance fell below an objective standard of reasonableness,
    indicating that counsel was not functioning within the meaning of the Sixth
    Amendment. United States v. Terlep, 
    57 M.J. 344
    , 349 (C.A.A.F. 2002). Our
    review of counsel’s performance is highly deferential and is buttressed by a
    strong presumption that counsel provided adequate representation. United
    States v. Garcia, 
    59 M.J. 447
    , 450 (C.A.A.F. 2004). In assessing the claim of
    ineffective assistance, “[w]e do not look at the success of a trial theory or
    tactical decision, but whether counsel made an objectively reasonable choice
    in strategy from the alternatives available at the time.” United States v.
    Williams, No. 200202264, 2005 CCA LEXIS 320, at *3, unpublished op. (N-M.
    Ct. Crim. App. 19 Oct 2005) (citing United States v. Dewrell, 
    55 M.J. 131
    , 136
    (C.A.A.F. 2001)).
    The second Strickland prong requires a showing of prejudice resulting
    from counsel’s deficient performance. 
    Strickland, 466 U.S. at 687
    . Such
    prejudice must be “so serious as to deprive [the appellant] of a fair trial,”
    producing “a trial whose result is unreliable.” 
    Dewrell, 55 M.J. at 133
    (citation and internal quotation marks omitted). The appropriate test for this
    prejudice is “whether there is a reasonable probability that, but for counsel’s
    error, there would have been a different result.” United States v. Quick, 
    59 M.J. 383
    , 386-87 (C.A.A.F. 2004) (citation omitted).
    The TDC addressed the appellant’s allegations via our court-ordered
    affidavit. He explained that in addition to reviewing the evidence and
    repeatedly interviewing his client, he worked extensively with Dr. KM, a
    defense toxicology expert with whom the TDC had consulted and called to
    11   Brief on Behalf of Appellant dated 20 Apr 2015 at 16.
    6
    United States v. Lopez, No. 201400373
    testify in multiple cases. Dr. KM extensively reviewed the case file, LCpl
    EH’s medication history, and the results of her drug screening conducted
    shortly after the assault before concluding that LCpl EH was not on any
    narcotics that would facilitate her blacking out or passing out. Further, given
    the available evidence, Dr. KM was unable to estimate LCpl EH’s blood
    alcohol content at the time of the assault. The TDC explained he originally
    intended to call Dr. KM to discuss the issues of blacking out versus passing
    out, but at the conclusion of the government’s case, made the tactical decision
    to not call Dr. KM.12 The TDC explained he did so because: 1) they did not
    believe the government had met its burden, 2) Dr. KM did not believe LCpl
    EH’s prescription medications affected her memory, and the toxicology report
    similarly confirmed the absence of any recreational drugs that would make
    blacking out or passing out more likely, and 3) they did not want to expose
    Dr. KM to questions about “date-rape” drugs—questions which the trial
    counsel had previously asked Dr. KM in a pretrial interview. Had LCpl EH
    been given a date-rape drug, its presence would not appear on the toxicology
    report and it would have explained LCpl EH’s memory issues and other
    behaviors. The TDC stated “the only chance of rebuttal of such testimony
    [about date rape drugs] would be in redirect examination and this might very
    well be deemed inculpatory by the factfinder.”13
    The TDC extensively cross-examined LCpl EH on her inability to
    remember events before, during, and after the assault. Then, during his
    summation, the TDC repeatedly attacked LCpl EH’s lack of memory and
    argued her testimony was so unreliable as to not be believable.
    We find, contrary to the appellant’s assertions, that the TDC actively
    investigated the phenomenon of alcohol-induced blackouts, to include
    consultations with an expert with whom he had a close working relationship.
    Further, we find the appellant’s tactical decision to not call his expert witness
    to discuss blackouts was an “objectively reasonable choice in strategy from
    the alternatives available at the time.” Williams, at *3. The TDC was rightly
    concerned that cross-examination of his expert witness would reveal that
    prescription and recreational drugs did not contribute to LCpl EH’s
    impairment, thereby increasing the likelihood that she was impaired by
    12  During his opening statement, the TDC told the military judge he intended to
    call an expert witness to discuss blackouts. The appellant now argues the TDC’s
    subsequent decision to not call the expert supports the claim that the TDC was
    ineffective. Appellant’s Brief at 16. We disagree. The appellant offers no evidence
    indicating that the military judge considered the TDC’s change in case presentation
    in a manner prejudicial to the appellant.
    13 Appellee’s Response to Court Order filed 29 Sep 2015, TDC Affidavit dated 28
    Sep 2015 at 2.
    7
    United States v. Lopez, No. 201400373
    alcohol consumed in the appellant’s presence. Further, the tactical decision to
    not risk “opening the door” to evidence that LCpl EH may have ingested a
    date rape drug in the appellant’s company was prudent and well within “the
    wide range of professionally competent assistance.” United States v. Smith,
    
    48 M.J. 136
    , 138 (C.A.A.F. 1998) (citation and internal quotation marks
    omitted).14
    Assuming arguendo that the performance of the TDC was deficient, the
    appellant has not demonstrated prejudice. The military judge’s special
    findings, supported by the record, indicate he was fully aware of LCpl EH’s
    inability to remember key events related to the sexual assault. He certainly
    accepted the proposition that LCpl EH was blacked out but still mobile for
    much of the evening, noting that LCpl EH and the appellant left the
    nightclub and ended up in the appellant’s “upstairs apartment which was
    accessed by stairs.”15 But Dr. KM could not testify to how much LCpl EH
    drank after she blacked out, could not estimate her blood alcohol content, and
    based on the toxicology report, could not attribute her lack of memory to
    anything other than alcohol. Even if the TDC had called his expert witness to
    testify, he would have been unable to challenge the reason for LCpl EH’s
    memory loss or explain why she would fabricate her lack of memory. We are
    thus unable to conclude that “there is a reasonable probability . . . there
    would have been a different result.” 
    Quick, 59 M.J. at 386-87
    .
    The appellant has failed to show that his TDC’s performance was
    deficient or that he was in any way prejudiced by TDC’s representation. We
    therefore find the appellant has not met his burden of demonstrating that his
    TDC was ineffective.16
    14 The appellant also argued his TDC was ineffective in failing to investigate
    whether LCpl EH’s prescription hydrocodone could have contributed to her memory
    blackout, yet has not offered any evidence that LCpl EH was prescribed or taking
    hydrocodone on the night of the incident. At trial she testified that she was not on
    any medications that could affect her memory at the time. Record at 157.
    Additionally an exhibit attached to the Article 32, UCMJ, record reveals only that
    LCpl EH was prescribed hydrocodone on 5 Dec 2012, more than 10 days after the
    assault. Art. 32, UCMJ, Investigation Report dated 31 Mar 2014, Exhibit 7 at 3.
    15   AE XX at 3.
    16 The appellant did not rebut or otherwise challenge his TDC’s affidavit. Brief on
    Behalf of the Appellant dated 10 May 2016. Accordingly, we find no requirement for
    additional fact-finding on this issue. See United States v. Ginn, 
    47 M.J. 236
    , 248
    (C.A.A.F. 1997).
    8
    United States v. Lopez, No. 201400373
    III. CONCLUSION
    The findings and the sentence as approved by the convening authority are
    affirmed.
    Senior Judge MARKS and Judge FULTON concur.
    For the Court
    R.H. TROIDL
    Clerk of Court
    9
    

Document Info

Docket Number: 201400373

Filed Date: 1/18/2017

Precedential Status: Precedential

Modified Date: 1/24/2017