United States v. Stewart , 71 M.J. 38 ( 2012 )

UNITED STATES, Appellee
v.
Nicholas S. STEWART, Captain
U.S. Marine Corps, Appellant
No. 11-0440
Crim. App. No. 201000021
United States Court of Appeals for the Armed Forces
Argued January 11, 2012
Decided March 6, 2012
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and COX, S.J., joined.
Counsel
For Appellant: Major Jeffrey R. Liebenguth, USMC (argued).
For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Colonel Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Louis J. Puleo, USMC.
Military Judge: Bruce W. MacKenzie
This opinion is subject to revision before final publication.
United States v. Stewart, No. 11-0440/MC
Judge ERDMANN delivered the opinion of the court.
Contrary to his pleas, Captain Nicholas S. Stewart was
convicted by members sitting as a general court-martial of one
specification of aggravated sexual assault in violation of
Article 120(c)(2), Uniform Code of Military Justice, 10 U.S.C. §
920 (2006). The members sentenced him to confinement for two
years and a dismissal, and the convening authority approved the
sentence as adjudged. The United States Navy-Marine Corps Court
of Criminal Appeals (CCA) affirmed the findings and the
sentence. United States v. Stewart, No. NMCCA 201000021, slip
op. at 2 (N-M. Ct. Crim. App. Jan. 31, 2011).1
We granted three issues in this case to determine: (1)
whether the military judge was required to enter a finding of
not guilty pursuant to Rule for Courts-Martial (R.C.M.) 917
after he held that Stewart had met his burden of proof as to the
affirmative defense of consent under Article 120(t)(16) by a
preponderance of the evidence; (2) whether the CCA erred when it
affirmed Stewart’s finding of guilty of aggravated sexual
assault where the members had already found him not guilty for
the same conduct under the same charge; and (3) whether it was
error for the military judge to rule at a pre-trial Article
39(a) hearing on whether the defense had met its burden of proof
1
The CCA directed that a supplemental court-martial order
reflect that Stewart was found guilty of the charged
2
United States v. Stewart, No. 11-0440/MC
under Article 120(t)(16) to justify instructions addressing the
affirmative defenses of consent and mistake of fact as to
consent.2 Under the unique circumstances of this case, we hold
that the finding of guilty affirmed by the CCA was impermissibly
based on conduct for which the members had found Stewart not
guilty. Accordingly, we reverse the decision of the CCA, set
aside the findings and the sentence, and dismiss the
specification and the charge with prejudice. Because our
specification except for the words “substantially incapacitated
or.” No. NMCCA 201000021, slip op. at 11.
2
We granted review of the following issues:
I. Under United States v. Prather, is it legally
possible for the prosecution to disprove an
affirmative defense beyond a reasonable doubt once
the military judge has determined that the defense
has been proved by a preponderance of the evidence
and, if not, is the military judge required to
enter a finding of not guilty in such a case under
RCM 917?
II. Whether the Navy-Marine Corps Court of Criminal
Appeals erred in finding the evidence factually
sufficient beyond a reasonable doubt to sustain
Appellant’s conviction under Specification 2
because in doing so it (1) violated the Prather
legal-impossibility principle and (2)
impermissibly found as facts allegations that he
was found not guilty of in Specification 1.
III. Whether the military judge committed prejudicial
error by requiring the defense to present
evidence on the defense of consent at an Article
39(a) session prior to trial.
United States v. Stewart, 70 M.J. 331 (C.A.A.F. 2011) (order
granting review).
3
United States v. Stewart, No. 11-0440/MC
resolution of granted Issue II is case dispositive, we need not
address granted Issues I and III.
FACTUAL BACKGROUND
Stewart and AN, a civilian, had known each other since at
least 2001. AN testified that for several months in 2003 and
2004 she and Stewart “were more than just friends” and that
their relationship included sexual activity, but no sexual
intercourse. In May 2008, Stewart attended a graduation party
at AN’s home to celebrate her graduation from a Masters of
Business Administration program. Over the evening AN become
extremely intoxicated. At approximately midnight, AN’s friends
assisted her downstairs to her bedroom and put her to bed. At
the time she was put to bed AN was fully clothed and appeared
unconscious. AN testified that she remembered being in bed with
her friends being around her and the next thing she remembered
was waking up with no clothes on with Stewart lying next to her.
After waking up she tried to reconstruct what had occurred and
remembered Stewart being on top of her trying to put his penis
inside her and also touching her vagina.
Based on this incident, Stewart was charged with a
violation of Article 120(c)(2) alleging that he “engage[d] in a
sexual act, to wit: using his penis to penetrate [AN] who was
substantially incapacitated or substantially incapable of
declining participation in the sexual act.”
4
United States v. Stewart, No. 11-0440/MC
PROCEDURAL BACKGROUND
The military judge recognized that pursuant to Article
120(t)(16) that when an accused asserts the affirmative defenses
of consent and/or mistake of fact as to consent, the statutory
burden is initially on the accused to prove those defenses by a
preponderance of the evidence. If the accused is successful,
the statutory burden shifts to the government to disprove
consent and mistake of fact as to consent beyond a reasonable
doubt. The military judge required Stewart to present evidence
of these affirmative defenses in a pre-trial Article 39(a)
hearing so that he could make a determination as to whether the
applicable instructions would be provided to the members.
Although Stewart’s trial defense counsel objected to this
procedure, he relied on a copy of Stewart’s pre-trial
declaration that had been provided to the court as an enclosure
to an unrelated motion and a copy of the verbatim transcript of
AN’s testimony during the Article 32(b) investigation.3 The
Government also provided several exhibits for the military judge
to consider before making his decision. The military judge
ruled preliminarily that Stewart had satisfied his burden of
proof and that he would provide instructions to the members on
the affirmative defenses. The procedure utilized by the
3
Neither of these documents was offered or admitted into
evidence at the court-martial.
5
United States v. Stewart, No. 11-0440/MC
military judge and his ruling form the bases for assigned Issues
I and III.
Issue II is separate and distinct from Issues I and III,
and has its genesis in a pre-trial motion by Stewart’s civilian
defense counsel to require the Government to elect between the
two alleged “alternative theories of criminal liability,”
asserting that the specification was duplicitous. The
Government conceded that the specification was duplicitous and
argued that the appropriate remedy was to sever the
specification into separate specifications. The military judge
declined to require the Government to elect a theory of criminal
liability and gave the defense a choice of severing the
specification into two specifications or having a tailored
instruction provided to the members. Between the two options,
the defense chose severance of the specification into two
specifications. As a result, the flyer provided to the members
reflected the charged specification as two specifications that
were identical except that Specification 1 alleged that AN was
“substantially incapacitated” and Specification 2 alleged that
AN was “substantially incapable of declining participation in
the sexual act.”
At the end of the presentation of evidence on the merits,
the military judge instructed the members that the Government
had the burden to disprove consent and mistake of fact as to
6
United States v. Stewart, No. 11-0440/MC
consent beyond a reasonable doubt.4 In addition, the military
judge provided the following instructions to the members:
You’re also advised that you may only find the
accused guilty, if convinced beyond a reasonable
doubt as to each and every element, to either
Specification 1 or Specification 2, or their
described lesser included offense, if appropriate.
. . . .
“Substantially incapacitated” means that level of
mental impairment due to consumption of alcohol,
drugs, or similar substance, while asleep or
unconscious, or for other reasons, which rendered the
alleged victim unable to appraise the nature of the
sexual conduct at issue, unable to physically
communicate unwillingness to engage in the sexual
conduct at issue, or otherwise unable to make or
communicate competent decisions.
. . . .
“Substantially incapable” means that level of mental
impairment due to consumption of alcohol, drugs, or
similar substance, while asleep or unconscious, or
for other reasons, which rendered the alleged victim
unable to appraise the nature of the sexual conduct
at issue, unable to physically communicate
unwillingness to engage in the sexual conduct at
issue, or otherwise unable to make or communicate
competent decisions.
. . . .
The following procedural rules will apply to your
deliberation and must be observed.
. . . .
4
The military judge did not instruct the members of the burden
shift found to be a “legal impossibility” in United States v.
Prather, 69 M.J. 338, 345 (C.A.A.F. 2011). See also United
States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).
7
United States v. Stewart, No. 11-0440/MC
You are reminded that you may return only a finding
of guilty for one but not both charged
specifications.
If a finding of not guilty is made to a specification
vote next on the lesser included offense. If a
finding of guilty is made, then you have convicted
the accused of that lesser included offense. If you
have voted on the lesser included offense and a
finding of not guilty is made as to the lesser
included offense, you have acquitted the accused of
this specification and its lesser included offense.
You should then use this same procedure on the second
specification.
The members found Stewart not guilty of Specification 1
(substantially incapacitated) and guilty of Specification 2
(substantially incapable of declining participation in the
sexual act).5
The CCA held that the military judge erred when he required
Stewart to present evidence on the affirmative defenses of
consent and mistake of fact as to consent in a pre-trial Article
5
Notwithstanding the requirements within R.C.M. 918 (“general
findings of a court-martial state whether the accused is found
guilty of each offense charged”) and R.C.M. 922 (“[f]indings
shall be announced in the presence of all parties”), neither
party, the military judge, nor the CCA noted any deficiency in
the findings of the court-martial. Although it is unclear based
on the military judge’s instructions whether the members thought
that they were addressing separate offenses or choosing between
theories of liability, we are satisfied that the members found
Stewart not guilty of “Alternative Specification 1.” We reach
this conclusion based on the military judge’s instructions that
the members could not find Stewart guilty of both specifications
and the Findings Worksheet that instructed the members to “[p]ut
a line through any inapplicable language” and they lined through
the option of finding Stewart guilty of “Alternative
Specification 1.” Therefore, the only way to read the Findings
Worksheet at this stage is that the members found Stewart not
guilty of “Alternate Specification 1.”
8
United States v. Stewart, No. 11-0440/MC
39(a) hearing. Assuming constitutional error, the CCA then
concluded that the error had no impact on the findings or the
sentence and was therefore harmless beyond a reasonable doubt.
In addition, the CCA held that the military judge’s
determination that the affirmative defenses were raised had no
impact upon the members’ fact-finding authority or
responsibility. The CCA also stated that the evidence clearly
established that AN was substantially incapable of declining
participation in the sexual act and therefore determined that
the evidence was factually sufficient. Under the unique
circumstances of this case, it is this latter determination that
forms the basis for Issue II.
DISCUSSION
Was the finding of guilty to aggravated sexual assault
as affirmed by the CCA impermissibly based on conduct
for which the members had found Stewart not guilty
under the same charge?
Stewart argues that in affirming the finding of guilty to
Specification 2, the CCA had to have found as fact the very
allegations that the members found him not guilty of in
Specification 1. He asserts that this case is similar to the
case of United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003),
where we held that excepting “divers occasions” from the charged
specification and substituting therefore “one occasion” without
any indication of which act formed the basis for the conviction
created an ambiguous finding that could not be reviewed for
9
United States v. Stewart, No. 11-0440/MC
factual sufficiency on appeal because “[a] Court of Criminal
Appeals cannot find as fact any allegation in a specification
for which the fact-finder below has found the accused not
guilty.” Id. at 395.
In response, the Government argues that in the text of
Article 120(c)(2)(A)-(C) Congress defined two separate theories
that in the alternative could comprise a conviction for
aggravated sexual assault and that “substantially incapacitated”
and “substantially incapable of declining participation in the
sexual act” do not allege the same theory of liability. The
Government concludes that there is no ambiguity in the members’
findings as there was in Walters, and there is no danger that
the CCA affirmed a finding of guilty for a crime that the
members acquitted Stewart.6
In North Carolina v. Pearce, 395 U.S. 711, 717 (1969), the
Supreme Court observed that, among other protections, the Double
6
We do not agree with the Government’s argument that Stewart
invited the error because he had made a motion for appropriate
relief based on the alleged duplicitous pleading. At trial, the
Government conceded that the specification was duplicitous and
argued, based on the Discussion to R.C.M. 906(b)(5), that the
sole remedy for a duplicitous specification is severance of the
specification into two or more specifications, which was the
remedy ordered by the military judge. The problem in this case
is not whether the decision to sever the charged specification
into two specifications was proper (an issue we need not
decide), but rather the problem is with the military judge’s
subsequent instructions to the members.
10
United States v. Stewart, No. 11-0440/MC
Jeopardy Clause protects “against a second prosecution for the
same offense after acquittal.” This principle “prohibit[s] a
reviewing court from rehearing any incidents for which the
accused was found not guilty.” United States v. Wilson, 67 M.J.
423, 428 (C.A.A.F. 2009) (citing Green v. United States, 355
U.S. 184, 187-88 (1957)); United States v. Smith, 39 M.J. 448,
451-52 (C.M.A. 1994) (“Court of Military Review [CCA] may not
make findings of fact contradicting findings of not guilty
reached by the factfinder.”). Consistent with this double
jeopardy principle, we noted in Wilson that the CCA “may not
conduct a factual sufficiency review when the findings are
ambiguous because such action creates the possibility that the
court would affirm a finding of guilt based on an incident of
which the appellant had been acquitted by the factfinder at
trial.” 67 M.J. at 428 (citing Walters at 395).
The Government initially charged Stewart with one
specification of aggravated sexual assault for engaging in a
sexual act with a person “who was substantially incapacitated or
substantially incapable of declining participation in the sexual
act” in violation of Article 120(c)(2). As noted, the military
judge severed the sole specification into two separate
specifications which were identical except that Specification 1
alleged that AN was “substantially incapacitated” and
Specification 2 alleged that AN was “substantially incapable of
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United States v. Stewart, No. 11-0440/MC
declining participation in the sexual act.” Before
deliberations, the military judge instructed the members as to
the elements of each offense, the elements of the potential
lesser included offenses of each, and the definitions of the
terms applicable to each offense. When he defined the terms
“substantially incapacitated” and “substantially incapable,” the
military judge defined them in exactly the same manner.7 Hence
the members were confronted with two offenses that, as
instructed, alleged exactly the same offense. As a result, the
military judge created the framework for a potential double
jeopardy violation. This potential was further crystallized by
the procedural instructions that the military judge subsequently
provided the members to assist them in reaching their findings.
The military judge’s procedural instructions included the
following as it relates to the order in which the members were
to consider the two specifications:
You are reminded that you may return only a finding
of guilty for one but not both charged
specifications.
If a finding of not guilty is made to a specification
vote next on the lesser included offense. If a
finding of guilty is made, then you have convicted
the accused of that lesser included offense. If you
have voted on the lesser included offense and a
finding of not guilty is made as to the lesser
included offense, you have acquitted the accused of
7
We noted in Prather, 69 M.J. at 343, that “there may exist an
abstract distinction between ‘substantially incapacitated’ and
‘substantially incapable,’” but whatever distinction exists
between the terms, that distinction was rendered meaningless
when the military judge defined them as the same.
12
United States v. Stewart, No. 11-0440/MC
this specification and its lesser included offense.
You should then use this same procedure on the second
specification.
Emphasis added. The military judge specifically admonished the
members that they must follow those instructions.
“Absent evidence to the contrary, this Court may presume
that members follow a military judge’s instructions.” United
States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).
Consequently, based on the military judge’s instructions the
members were required to reach findings on Specification 1
before considering Specification 2. In the absence of evidence
to the contrary, of which there is none in this case, we presume
the members followed the military judge’s instructions. Unlike
in Walters, the findings in this case were not ambiguous as it
is possible to determine which act formed the basis of the
findings. Here, however, Stewart was initially found not guilty
by members for certain conduct for a specific Article 120
offense as defined by the military judge, and was then found
guilty of the same conduct for the same offense. Even if the
members did not first make a decision on Specification 1 before
considering Specification 2, as a result of the military judge’s
instructions, they were placed in the untenable position of
finding Stewart both guilty and not guilty of the same offense.
We recognize that generally consistency in a verdict is not
13
United States v. Stewart, No. 11-0440/MC
necessary,8 but under the unique circumstances of this case, the
principles underpinning the Double Jeopardy Clause as recognized
in United States v. Smith made it impossible for the CCA to
conduct a factual sufficiency review of Specification 2 without
finding as fact the same facts the members found Stewart not
guilty of in Specification 1. The CCA’s holding to the contrary
was error.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings and the sentence
are set aside and the specification and the charge are dismissed
with prejudice.
8
United States v. Jackson, 7 C.M.A. 67, 21 C.M.R. 193 (1956);
see also United States v. Wilson, 13 M.J. 247 (C.M.A. 1982).
14