U.S. v. Robinson, 77 M.J. 294

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault Generally Pre-2019 offenses

1. with respect to the sexual assault conviction in this case, the trial evidence was legally sufficient to establish that appellant knew or reasonably should have known that the victim was incapable of consenting due to her impairment by intoxication, where (1) at a party prior to the assault, it was apparent to the partygoers, to include appellant, that the victim was intoxicated, (2) when appellant later entered the victim’s barracks room, he saw a trashcan and a bottle of water next to her bed, and (3) appellant admitted to investigators that the victim was “pretty much asleep” when he arrived at her barracks room and that he later thought that she “was probably too intoxicated to consent” to have sex

Trial Stages: Appeals: Harmless / Prejudicial Error

1. with respect to an appellate issue of whether evidence should have been admitted at trial under the constitutionally required exception of MRE 412(b)(1)(C), the government bears the burden of establishing harmlessness beyond a reasonable doubt; and in assessing harmlessness, an appellate court evaluates the entire record to determine whether there is a reasonable possibility that this evidentiary error contributed to appellant’s conviction
2. with respect to the sexual assault conviction in this case, assuming without deciding that the military judge erred in excluding constitutionally required evidence of the victim’s longstanding flirtatious relationship with appellant prior to the night of the offense, the error was harmless beyond a reasonable doubt because of the strength of the government’s case, where (1) the government introduced ample evidence not only that the victim was significantly intoxicated, but also that appellant knew that she was significantly intoxicated, and (2) appellant admitted to investigators that he recognized that the victim was probably too intoxicated to consent; even if the flirtation evidence had been admitted at the court-martial, there is no reasonable probability that it would have changed the result of the trial

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant did not object to the military judge’s instructions at trial, any error in the instructions is reviewed by an appellate court for plain error based on the law at the time of appeal
2. an appellant bears the burden of establishing plain error, and he establish the following three prongs: (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different
3. in this case, the military judge did not plainly err in instructing the members on the Article 92, UCMJ, prohibited relationship offense; even if one were to assume without deciding that “recklessness,” or even “knowledge,” was the appropriate mens rea for this Article 92, UCMJ, offense and that the military judge erred in failing to instruct the panel accordingly, appellant failed to meet his burden of showing that but for this error, the outcome of the proceeding would have been different, where (1) it was uncontroverted that appellant, then an E-5 NCO, knew he was attending a party with junior enlisted soldiers, knew he was the only NCO at the party, knew that four of the junior enlisted soldiers at the party were in the same company as he, knew that all of the junior enlisted members were drinking alcohol, including at least one who was underage, knew that one of the junior enlisted members was intoxicated; and knew the NCO’s creed and the standards for NCOs; therefore, even if the military judge had provided the panel members with an appropriate mens rea instruction, it is clear that the panel would have found that appellant knew that his presence as an E-5 compromised, or appeared to compromise, the integrity of supervisory authority, caused actual or perceived partiality, or created a clearly predictable adverse impact on authority

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews questions of legal sufficiency de novo
2. 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
3. this legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution
4. with respect to an appellate issue of whether evidence should have been admitted at trial under the constitutionally required exception of MRE 412(b)(1)(C), the government bears the burden of establishing harmlessness beyond a reasonable doubt; and in assessing harmlessness, an appellate court evaluates the entire record to determine whether there is a reasonable possibility that this evidentiary error contributed to appellant’s conviction
5. where appellant did not object to the military judge’s instructions at trial, any error in the instructions is reviewed by an appellate court for plain error based on the law at the time of appeal
6. an appellant bears the burden of establishing plain error, and he establish the following three prongs: (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different