United States v. Specialist SALVADOR JIMENEZ-VICTORIA , 75 M.J. 768 ( 2016 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    CAMPANELLA, HERRING, and PENLAND
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Specialist SALVADOR JIMENEZ-VICTORIA
    United States Army, Appellant
    ARMY 20140733
    Headquarters, United States Army Maneuver Center of Excellence
    Charles A. Kuhfahl, Jr., Military Judge
    Colonel Charles C. Poché, Staff Judge Advocate (pretrial and recommendation)
    Lieutenant Colonel John M. McCabe, Acting Staff Judge Advocate (addendum)
    For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
    Captain Amanda R. McNeil Williams, JA (on brief); Major Christopher D. Coleman,
    JA; Captain Amanda R. McNeil Williams, JA (on reply brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
    JA; Major Steven J. Collins, JA; Lieutenant Colonel John C. Lynch, JA (on brief).
    16 September 2016
    ---------------------------------
    OPINION OF THE COURT
    ---------------------------------
    CAMPANELLA, Senior Judge:
    This is a case in which we find, after a fresh, impartial look at the evidence,
    and giving no deference to the decision of the trial court on factual sufficiency
    beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the
    trial court saw and heard the witnesses, that the evidence supporting appellant’s
    conviction for sexual assault and abusive sexual contact is both factually and legally
    sufficient.
    A military judge, sitting as a general court-martial convicted appellant,
    contrary to his pleas, of one specification each of sexual assault by causing bodily
    harm and abusive sexual contact by causing bodily harm in violation of Article 120,
    JIMENEZ-VICTORIA—ARMY 20140733
    Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. 1 The
    military judge sentenced appellant to a bad-conduct discharge and confinement for
    eighteen months, a sentence approved by the convening authority.
    Appellant’s case is before us for review pursuant to Article 66(c), UCMJ.
    Appellant assigns two errors, one of which merits discussion but no relief.
    Appellant submits that the convictions for sexual assault and abusive sexual contact
    are factually insufficient. We disagree. The matters raised by appellant pursuant to
    United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982), though considered, lack
    merit. 2
    1
    Appellant was found not guilty of sexual assault by penetrating Private First
    Class (PFC) AH’s vulva with his penis when he knew or reasonably should have
    known she was asleep, and of abusive sexual contact by touching PFC AH’s breast
    with his hand when he knew or reasonably should have known she was asleep, in
    violation of Article 120, UCMJ.
    2
    In supplemental matters submitted pursuant to United States v. Grostefon, 
    12 M.J. 341
    (C.M.A. 1982), appellant personally asserts the military judge, during a post-
    trial “bridging the gap” session with trial counsel and defense counsel, commented
    on deliberative aspects of the case–specifically, appellant’s and PFC AH’s testimony
    at trial. Appellant alleges the military judge stated appellant appeared “too
    rehearsed and contrived” on direct examination, but was “searching for words” on
    cross-examination. As for PFC AH, the military judge commented that she was
    “completely lying” during her victim impact statement during the government’s
    sentencing case. Appellant does not state how he learned of the military judge’s
    comments or provide an affidavit from counsel present at the meeting to illustrate
    the accuracy of the military judge’s comments.
    If appellant accurately reported the content of the “bridging the gap” session, the
    military judge indeed overstepped the bounds of proper feedback in a post-trial
    session by revealing his deliberate thought process. As the factfinder, it was the
    military judge’s responsibility to weigh the evidence and the credibility of the
    witnesses in rendering a decision as to the appellant’s guilt and an appropriate
    sentence. He should not have discussed his deliberative process with counsel.
    While we find no relief would be warranted based on the matters claimed by
    appellant, this case nonetheless serves as a cautionary note to those military judges
    who choose to conduct “bridging the gap” sessions. The deliberations of a military
    judge are privileged. See Military Rule of Evidence 509. In promoting confidence
    in the judiciary, “judges must recognize and safeguard against any affront to the
    independence of a court, such as . . . invasion of the deliberative process.” Army
    Code of Judicial Conduct for Army Trial and Appellate Judges, r. 1.2 cmt. 4 (16
    May 2008). U.S. Army Trial Judiciary Standing Operating Procedures, ch. 11,
    (continued. . .)
    2
    JIMENEZ-VICTORIA—ARMY 20140733
    BACKGROUND
    Appellant was scheduled to move to Fort Bragg, where his friend, PFC AH,
    was already stationed. One Friday evening before his move, appellant drove to Fort
    Bragg to visit PFC AH. Appellant met up with PFC AH in the early morning hours
    on Saturday, spent some time catching up and running errands, and then returned to
    her barracks where PFC AH allowed appellant to sleep that evening.
    On Saturday morning, the two drove together to Myrtle Beach, South
    Carolina, to enjoy a day at the beach. Appellant paid for the excursion after PFC
    AH said she had no money. Upon arriving at the beach, they decided to spend the
    evening there, so appellant rented a hotel room. After changing into beachwear, the
    two spent the day playing on the beach and around the boardwalk. After dinner, the
    two returned to the hotel room for the evening.
    There were two beds in the hotel room. Private First Class AH got into one
    bed to sleep while appellant stayed up to finish some work. A short time after
    falling asleep, PFC AH was awakened by appellant kissing her and touching her
    breasts. Private First Class AH told appellant to “stop.” He apologized but then
    persisted in attempting to touch her breasts. Private First Class AH told appellant to
    stop, threatened him with a knife and told him “quit trying to [f***] me.” Appellant
    finally stopped making sexual advances towards her and PFC AH went back to sleep.
    Later, PFC AH was awakened a second time to find appellant on top of her
    between her legs with his penis inside of her vagina. Her attempts to push him off
    or otherwise stop him were unsuccessful. Appellant ejaculated inside her vagina.
    After checking out of the hotel the following morning, appellant and PFC AH
    drove back to Fort Bragg, stopping along the way for food. Private First Class AH
    planned to attend a get-together with friends that afternoon. Private First Class AH
    (. . . continued)
    para. 4(c), (1 Nov. 2013), counsels military judges, in conducting a “bridging the
    gap” session not to discuss:
    1) personal impressions of the evidence or arguments
    presented; 2) the Judge's thought process in ruling on a
    motion or in arriving at a particular finding or sentence;
    3) tactical decisions made by counsel in the course of the
    trial; 4) witness credibility; 5) factors considered in
    arriving at findings or sentence; 6) the weight if any given
    to testimony, documents, argument, or case citations; or 7)
    other information that would disclose the judge's
    deliberative process. . . .
    3
    JIMENEZ-VICTORIA—ARMY 20140733
    stated at trial that in the immediate aftermath of the incident she was confused and
    was trying to “process everything” that happened. While PFC AH did not confront
    appellant on the drive back, she did confront him in a text message after appellant
    dropped her off at her barracks.
    Private First Class AH also sent a text message to her friend, SPC SI,
    indicating that appellant had “pretty much raped her” while at Myrtle Beach -
    despite her trying to stop him by threatening him with a knife.
    Private First Class AH then went to a picnic for a short time, after which she
    telephoned her ex-boyfriend and explained what happened earlier in the day with
    appellant. With the encouragement from her ex-boyfriend, she reported the incident
    to the authorities.
    Private First Class AH reported the sexual assault to a non-commissioned
    officer (NCO). That NCO, in turn, called Staff Sergeant (SSG) QR, a female NCO,
    to assist PFC AH. Staff Sergeant QR found PFC AH distraught in her barracks
    room. SSG QR accompanied PFC AH to the hospital where appellant underwent a
    rape examination.
    After PFC AH provided a sworn statement to CID, investigators asked her to
    place a pretext phone call to appellant in hopes of soliciting an incriminating
    statement about the incident. During this phone call appellant said he thought PFC
    AH was awake during the sexual encounter. In response to PFC AH asking why
    appellant tried again to have sex with her, appellant responded “I like you [AH].”
    When she asked him why he would do something like that, he responded “I didn’t
    mean to hurt you. I want to be your friend.”
    At trial, appellant testified the sex with PFC AH was consensual and that PFC
    AH was awake.
    LAW AND ANALYSIS
    Article 66(c), UCMJ, provides:
    In each case referred to it, the Court of Criminal Appeals may
    act only with respect to the findings and sentence as approved by
    the convening authority. It may affirm only such findings of
    guilty and the sentence or such part or amount of the sentence, as
    it finds correct in law and fact and determines, on the basis of
    the entire record, should be approved. In considering the record,
    it may weigh the evidence, judge the credibility of witnesses,
    and determine controverted questions of fact, recognizing that
    the trial court saw and heard the witnesses.
    4
    JIMENEZ-VICTORIA—ARMY 20140733
    Accordingly, this court has an independent duty to review the record and determine
    whether it is correct in law and fact. UCMJ art. 66(c).
    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 crime beyond a reasonable doubt.” Jackson v. Virginia,
    
    443 U.S. 307
    , 319, (1979); see also United States v. Phillips, 
    70 M.J. 161
    , 166
    (C.A.A.F. 2011). The test for factual sufficiency, on the other hand, “involves a
    fresh, impartial look at the evidence, giving no deference to the decision of the trial
    court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take
    into account the fact that the trial court saw and heard the witnesses.” United States
    v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). The latter determination is
    unique to the military justice system, as it requires this court to review the record de
    novo. United States v. Nerad, 
    69 M.J. 138
    , 141 n.1 (2010). This court has noted
    that “the degree to which we ‘recognize’ or give deference to the trial court’s ability
    to see and hear the witnesses will often depend on the degree to which the credibility
    of the witnesses is at issue.” United States v. Davis, 
    75 M.J. 537
    , 546 (Army Ct.
    Crim. App. 2015) (en banc).
    In reviewing for factual sufficiency we are limited to the facts introduced at
    trial and considered by the court-martial. United States v. Beatty, 
    64 M.J. 456
    (C.A.A.F. 2007). We may affirm a conviction only if we conclude, as a matter of
    factual sufficiency, that the evidence proves appellant’s guilt beyond a reasonable
    doubt. United States v. Sills, 
    56 M.J. 239
    , 240–41 (C.A.A.F. 2002); United States v.
    Turner, 
    25 M.J. 324
    , 324–25 (C.M.A. 1987).
    Our superior court does not share either our factual review authority or
    responsibility. Compare Article 66 with Article 67, UCMJ. Nonetheless, our
    decisions are subject to review by the CAAF. United States v. Nerad, 
    69 M.J. 138
    ,
    140 (C.A.A.F. 2010) (“[W]hile CCAs have broad authority under Article 66(c),
    UCMJ, to disapprove a finding, that authority is not unfettered. It must be exercised
    in the context of legal—not equitable—standards, subject to appellate review.”).
    This court reviews the entire record of a trial anew, which includes the evidence
    presented by the parties and the findings of guilt.
    This case turns on the factfinder’s and our credibility determinations of both
    the appellant and the victim. After taking into account that the finder of fact saw
    and heard the witnesses, we find the testimony of the victim combined with other
    evidence, proves appellant’s guilt beyond a reasonable doubt. Weighing in favor of
    appellant’s guilt, we note: the evidence of PFC AH’s immediate confrontation of
    appellant via text message after he dropped her off at the barracks; her immediate
    report to her ex-boyfriend and to SPC SI; her immediate report to NCOs and law
    enforcement; her undergoing a rape examination; and the key statements by
    appellant during the pretext phone call.
    5
    JIMENEZ-VICTORIA—ARMY 20140733
    Having reviewed the entire record, we are convinced beyond a reasonable
    doubt that appellant committed the offenses of which he stands convicted.
    CONCLUSION
    The findings of guilty and the sentence are AFFIRMED.
    Judge HERRING and Judge PENLAND concur.
    FOR THE
    FOR THE COURT:
    COURT:
    MALCOLM
    MALCOLM H.  H. SQUIRES,
    SQUIRES, JR.
    JR.
    Clerk
    Clerk of
    of Court
    Court
    6
    

Document Info

Docket Number: ARMY 20140733

Citation Numbers: 75 M.J. 768

Filed Date: 9/16/2016

Precedential Status: Precedential

Modified Date: 1/13/2023