U.S. v. Mendoza, 85 M.J. 213

First Principles: Constitutional Matters: Due Process

1. in this case, where (1) the government elected not to charge appellant with sexual assault under Article 120(b)(3)(A), UCMJ (a sexual act upon a person incapable of consenting), and instead charged Appellant with sexual assault under Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent), but (2) at trial presented significant evidence of the victim's extreme intoxication and argued that the victim's inability to consent established the absence of consent, the government's approach—which conflated two different and inconsistent theories of criminal liability—raised significant due process concerns

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Offenses on/after 1 Jan 2019 › (b) Sexual Assault

1. Article 120(b)(2)(A), UCMJ criminalizes the performance of a sexual act upon a victim who is capable of consenting but did not consent, and Article 120(b)(3)(A), UCMJ criminalizes the performance of a sexual act upon a victim who is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance when the victim's condition is known or reasonably should be known by the accused
2. to achieve a conviction under Article 120(b)(3)(A), UCMJ, the government must prove not only that the victim was incapable of consenting but also that the victim's condition was known or reasonably should have been known by the accused; because Article 120(b)(2)(A), UCMJ, only requires that the sexual act be performed "without the consent" of the victim (regardless whether the accused knew or should have known of that condition), if the government could establish the absence of consent by proving that the victim was incapable of consenting, then the government could obtain an incapable-of-consent conviction under Article 120(b)(2)(A), UCMJ, without proving the accused's mens rea beyond a reasonable doubt, thus relegating Article 120(b)(3)(A), UCMJ, to mere surplusage without any purpose or effect
3. Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A) establish separate theories of criminal liability, and the government cannot prove sexual assault "without the consent" of the victim by establishing that the victim was incapable of consenting
4. nothing prevents the government from charging an accused with both Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, offenses under inconsistent factual theories and allowing the trier of fact to determine whether the victim was capable or incapable of consenting; but what the government cannot do is charge one offense under one factual theory and then argue a different offense and a different factual theory at trial; doing so robs the accused of his constitutional right to know what offense and under what legal theory he will be tried and convicted
5. in this case, where (1) the government elected not to charge appellant with sexual assault under Article 120(b)(3)(A), UCMJ (a sexual act upon a person incapable of consenting), and instead charged Appellant with sexual assault under Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent), but (2) at trial presented significant evidence of the victim's extreme intoxication and argued that the victim's inability to consent established the absence of consent, the government's approach -- which conflated two different and inconsistent theories of criminal liability -- raised significant due process concerns
6. in this case, the military judge may have convicted sppellant of sexual assault on the theory that the victim was incapable of consenting without the government proving that Appellant knew or should have known that she was incapable, and this possibility raises serious due process concerns
7. in cases involving sex offenses, the government is free to meet its burden of proof with circumstantial evidence; accordingly, a conviction for engaging in a sexual act upon a person capable of consenting who did not consent may be based on circumstantial evidence alone
8. the fact that Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent) and Article 120(b)(3)(A), UCMJ (a sexual act upon a person incapable of consenting) create separate theories of liability, that does not bar the trier of fact from considering evidence of the victim's intoxication when determining whether the victim consented; nothing in Article 120(b)(2)(A), UCMJ, bars the government from offering evidence of an alleged victim's intoxication to prove the absence of consent; conversely, nothing bars the defense from offering the same evidence to sow reasonable doubt; but what the government cannot do is prove the absence of consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was too intoxicated to consent

Core Criminal Law Subjects: Evidence: Generally

1. the government may meet its burden of proving an accused's guilt beyond a reasonable doubt with circumstantial evidence
2. findings of guilt may be based on direct or circumstantial evidence, without any exception for certain offenses
3. in cases involving sex offenses, the government is free to meet its burden of proof with circumstantial evidence
4. circumstantial evidence is intrinsically no different from testimonial evidence
5. the absence of direct evidence of an element of an offense does not prevent a finding of guilty for that offense from being legally sufficient

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. although the CAAF does not review the factual sufficiency of convictions when it reviews cases under Article 67, UCMJ, 10 USC § 867 (2018), it retains the authority to review factual sufficiency determinations of the CCAs for the application of correct legal principles, but only as to matters of law

Trial Stages: Appeals: Remedies › Remand

1. the CAAF may remand a case to the CCA when there is an open question whether the CCA's factual sufficiency analysis applied correct legal principles
2. in this case, where the CCA's opinion in upholding a conviction under Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent) presented an open question as to whether it improperly considered the evidence of victim's intoxication as proof of the victim's inability to consent and therefore proof of the absence of consent, a remand to the CCA was necessary for a new factual and legal sufficiency review under Article 66, UCMJ, 10 USC § 866 (2018)

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

1. in most legal sufficiency cases, which an appellate court reviews de novo, that court asks 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
2. in legal sufficiency cases, because an appellate court draws every reasonable inference from the evidence in favor of the prosecution, the standard for legal sufficiency involves a very low threshold to sustain a conviction; this deferential standard impinges upon the factfinder's discretion only to the extent necessary to guarantee the fundamental protection of due process of law
3. an appellate court reviews questions of statutory interpretation de novo
4. for an appellate court, the first step in statutory interpretation cases is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; if the statutory language is unambiguous and the statutory scheme is coherent and consistent, the inquiry is done; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole
5. when an appellate court engages in statutory interpretation, it typically seeks to harmonize independent provisions of a statute; to this end, the court employs the surplusage canon, which requires that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequences

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. an appellate court reviews questions of statutory interpretation de novo
2. for an appellate court, the first step in statutory interpretation cases is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; if the statutory language is unambiguous and the statutory scheme is coherent and consistent, the inquiry is done; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole
3. when an appellate court engages in statutory interpretation, it typically seeks to harmonize independent provisions of a statute; to this end, the court employs the surplusage canon, which requires that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequences