United States v. Cage , 1995 CAAF LEXIS 68 ( 1995 )

Opinion of the Court

GIERKE, Judge:

1. A military judge sitting as a general court-martial convicted appellant of rape and assault consummated by a battery, in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 USC §§ 920 and 928, respectively. The assault consummated by a battery is unrelated to this appeal. Appellant also was charged with conspiracy to commit rape and dereliction of duty, in violation of Articles 81 and 92, UCMJ, 10 USC §§ 881 and 892, respectively. After both sides had rested, the prosecution withdrew the conspiracy charge and the military judge granted a motion for a finding of not guilty of dereliction of duty.

2. The approved sentence provided for a dishonorable discharge, confinement for 8 years, and total forfeitures. The Court of Military Review¹ on May 13, 1993, set aside the conviction of rape and approved a conviction of indecent assault, in violation of Article 134, UCMJ, 10 USC § 934, as a lesser-in-eluded offense of rape. That court reassessed the sentence to a dishonorable discharge, confinement for 4 years, and total forfeitures. Unpub. op. at 2.

3. We granted review of the following issue:²

WHETHER THE EVIDENCE OF RECORD IS LEGALLY SUFFICIENT TO SUPPORT THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW’S FINDING OF GUILTY TO THE LESSER INCLUDED OFFENSE OF INDECENT ASSAULT.

We hold that the evidence is not legally sufficient to support a conviction of indecent assault, so we reverse.

Summary of the Evidence

4. Appellant was a Marine Corps recruiter. Nicole D was a 19-year-old potential enlistee in the Marine Corps. She was a person of limited intelligence, having twice failed the test for a driver’s license and having failed the Air Force enlistment qualification test. In early August 1989, she was contacted by Sergeant (Sgt) Perez, another Marine Corps recruiter who worked with appellant. At some time before August 30, 1989, Sgt Perez took Nicole to appellant’s apartment and introduced her to appellant, two other males, and appellant’s girlfriend, “Mimi,” later identified as Mary Torruella. Nicole stayed in the apartment for about 2 hours, after which Sgt Perez took her home.

5. On August 30,1989, Sgt Perez contacted Nicole at her place of employment and told her that he needed to take her to Philadelphia for testing on that day. He instructed her to pack a bag for an overnight stay in Philadelphia, even though she lived only about 30 minutes’ travel time from Philadelphia. Sgt Perez picked up Nicole at 11:00 a.m. in a “company” van, accompanied by appellant and another Marine, all in uniform. Nicole was wearing baggy white shorts and a tank top.

6. After leaving appellant and the other Marine at other locations along the way, Sgt Perez took Nicole to the recruiting office, where she spent “[a]t least two hours" filling out paperwork. Nicole had not eaten breakfast or lunch but was “okay.”

7. At about 3:00 p.m., Sgt Perez and Nicole departed the recruiting office. She thought they were going “[t]o the testing site” in Philadelphia. Instead, Sgt Perez drove to a bar in Camden. Appellant was parked in front of the bar in another vehicle. All three went into the bar. Nicole testified that Sgt Perez told her “to follow them and they said—they told me to relax and I can trust them.”

8. In the bar appellant asked Nicole if she wanted a drink, but she declined. Sgt Perez and appellant sat down and looked over Nicole’s enlistment paperwork. After a few minutes, Sgt Perez departed for about 15 minutes, during which he changed clothes from his uniform to civilian clothes.

9. Nicole testified that when Sgt Perez returned to the bar, he asked her if she wanted a drink, and she said, “Yes.” Sgt Perez then ordered an “Alabama slammer” for her and himself. Nicole testified that, even though she was a non-drinker and underage, she accepted the drink because “I was trying to prove that I was big—I could do whatever they could do____ Because they said I was a little girl ... [a]nd that I couldn’t hang with them.”

10. At about 5:15 p.m., appellant and Nicole departed the bar for the testing site in Philadelphia. The test was supposed to start at 5:80. Sgt Perez remained at the bar.

11. Nicole testified that appellant drove to an unidentified hotel in Philadelphia, where they learned that the test was being conducted at the Military Enlistment Processing Station (MEPS). They drove to the MEPS and were informed that they had arrived too late to take the test.

12. Nicole testified that appellant said nothing about rescheduling the test. They drove back to the bar in Camden and told Sgt Perez what had happened. Nicole sat at the bar while appellant and Sgt Perez began playing pool. Nicole testified that she had not eaten anything all day and she asked appellant, “Could you take me to McDonald’s or somewhere?” Appellant responded, “Right after I finish this game,” but neither appellant nor Sgt Perez offered at any time thereafter to obtain any food for Nicole. She testified that she thought about asking again but “just left it alone.” Instead, both Sgt Perez and appellant bought more “Alabama slammers” for Nicole. She testified that she consumed 5-8 drinks, after which her head “was spinning and it seemed like it got dark in the bar, like somebody just left one light on.” After her last drink, she became ill and vomited at the bar.

13. Nicole testified that she did not remember leaving the bar, but that Sgt Perez later told her that he carried her out and put her in the van. She testified that she remembered being in the back of the van and heard appellant asking if she was “on the pill,” promising her that “he won’t come inside” her, and saying, “Nikki, I want you.”

14. Nicole testified that she remembered appellant driving the van back to the bar, where Sgt Perez was standing outside waiting. Sgt Perez asked appellant, “Where have you been?” She remembered that one of them picked her up and moved her from the back of the van to the front seat. Then appellant got into his own vehicle, Sgt Perez got into the van with Nicole, and they all drove to appellant’s apartment.

15. At the apartment appellant carried Nicole into the apartment, put her on the bed in a back bedroom, left the room, and closed the door. Nicole testified that while on the bed, she remembered appellant standing at the door of the bedroom and telling Sgt Perez, “Give me just five minutes.” She did not hear what Sgt Perez was saying. She also remembered a female voice asking, “What are you two doing?”

16. Nicole testified that she remembered nothing else about her night in appellant’s apartment. She remembered awakening and feeling “[ojverly tired,” with her head “still spinning.” She also felt “sore” “between her legs,” felt a burning sensation when she urinated, and experienced some bleeding with a bowel movement. She could not remember if she was on top of the sheets or under the sheets.

17. When Nicole awakened, appellant was in the kitchen cooking breakfast. Nicole testified that she asked appellant what had happened, but “[h]e was quiet.” Nicole ate some breakfast, took some aspirin, and drank some juice. Sgt Perez came to the apartment, and Nicole asked him what had happened the night before. He told her that she “was acting real wild in the bar” and that she “was flirting with him and coming on to him.” Nicole testified that Sgt Perez’ answer was untrue. Appellant and Sgt Perez departed for their office, and Nicole remained in the apartment watching television and then returning to the bedroom and going to sleep.

18. Nicole testified that Sgt Perez awakened her when he returned to the apartment and then told her, “Get your stuff together and I’m going to take you home.” Sgt Perez drove her to her home in the van. He told her that if her mother asked about the enlistment test, “To tell her that I had failed the test, that I got the results back and I failed it.”

19. Sgt Perez delivered Nicole to her home at about 2:00 p.m. Nicole called a friend, Loma, and then “took a bath.”

20. On cross-examination, Nicole testified that she had no recollection of appellant touching her or attempting vaginal or anal intercourse while they were in the van. Likewise, she had no recollection of anyone touching her or attempting vaginal or anal intercourse while she was in the bedroom. She testified that when she awakened, all of her clothing was “in place,” including her underwear and sanitary napkin. Even though she was still having her menstrual period, there was no blood on her white shorts or on the bed sheets. She had no scratches or bruises anywhere, including her vaginal and anal areas. A medical examination approximately a week and a half later revealed no sign of rectal or vaginal trauma.

21. Loma S testified that Nicole called her and said that “she was calling because something had happened to her when she went to some kind of testing area that she had to do.” Nicole was not crying but “was like, holding it back.” She sounded “scared and confused.” Nicole “said that she wasn’t sure what had happened to her.” Lorna told her, “You probably got raped,” and Nicole responded, ‘Yes, I think I got raped.” Lorna then told Nicole to tell her mother and to go to the hospital.

22. The defense rested without presenting any evidence. After the military judge granted a defense motion for a finding of not guilty as to Charge II and its specification (dereliction of duty by failing to properly dispatch an official vehicle), the prosecution withdrew the conspiracy charge (Charge I and its specification) and was granted permission to reopen its case and present the testimony of Sgt Perez.

23. Sgt Perez testified under a grant of immunity. He had been charged as a co-conspirator with appellant and a coactor in the rape of Nicole D. He had pleaded guilty at a general court-martial to several offenses, including sexual intercourse and indecent assault with four other female applicants for enlistment. His guilty pleas were pursuant to a pretrial agreement that limited his punishment, obligated the Government to withdraw charges of conspiring to rape Nicole D and raping Nicole D, and obligated him to testify against appellant.

24. Sgt Perez testified that Nicole D consumed “two to three” drinks at Pierre’s bar on August 30. She was drinking “Tequila Sunrises.” He testified that Nicole “sat at the table away from the bar” while he was shooting pool. Sgt Perez testified that appellant was “occupied with Mimi in the corner of the bar” for most of the time.

25. Sgt Perez testified they left the bar in a “convoy,” with appellant in a government sedan, Mimi in her own vehicle, and Nicole with him in the van. He testified that en route to the apartment, Mimi’s car turned off in another direction while appellant, Nicole, and he went to the apartment. On the way, Nicole “leaned, slipped” toward him. Sgt Perez “pushed her back up against the window of the van.”

26. Sgt Perez testified that, after appellant put Nicole in the guest bedroom, he made some comments suggesting “an intimate relation of some sort” with Nicole. Sgt Perez “suggested not.” Sgt Perez testified that he “just didn’t feel right, you know— that it was right.” Appellant responded, “Boss, five minutes,” after which he went into the bedroom with Nicole. Sgt Perez did not see whether the door was open or closed.

27. After appellant had been in the bedroom for a few minutes, Sgt Perez heard the two of them go to the bathroom and then return to the bedroom. Appellant came out of the bedroom about 5 minutes later, went to the bathroom, and showered.

28. About a month later, appellant told Sgt Perez that he was “getting together some alibis about that evening.” Appellant said he was gathering statements to establish that Nicole was not in the apartment on August 30.

29. Sgt Perez testified that Mimi was present in the apartment while Nicole was sleeping in the back bedroom. Mimi was living with appellant at the time.

30. Sgt Perez was not asked directly and did not say whether he spent any time in the bedroom with Nicole. He likewise was not asked and did not say whether he had any sexual contact with Nicole while he was alone with her in the van.

31. Mary Annette Torruella, known as “Mimi,” testified that she was dating appellant and had moved into his apartment during the middle of August. She testified that on August 30, she left work about 4:30 p.m. and walked across the street to Pierre’s Bar to meet appellant. He told her to get something to eat and that he was taking Nicole to be tested. Appellant returned to Pierre’s at about 6:10 p.m.; Nicole sat down at a table; and appellant talked with Sgt Perez for 10-15 minutes. They left Pierre’s at about 6:30 p.m. Mimi testified that she and appellant left together in her vehicle; Sgt Perez and Nicole left in the van.

32. When they arrived at appellant’s apartment, appellant told Mimi that Sgt Perez wanted to bring Nicole up to the apartment, and Mimi responded, “You must be fucking crazy.” Mimi testified that because of her vehement objection, Nicole and Sgt Perez were never in the apartment on the night of August 30.

Discussion

33. The test for legal sufficiency of the evidence 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). We hold that the evidence in this case is not legally sufficient to uphold a conviction of indecent assault.

34. The basic factual question in this case is, “Who did what?” The evidence concerning the “who” is sparse. Sgt Perez was appellant’s supervisor. He and appellant appear to have been equally involved in the scheme to keep Nicole away from home overnight and get her grossly intoxicated. Each had opportunities to be alone with Nicole while she was intoxicated, both in the van and in appellant’s apartment. Sgt Perez was never asked if he assaulted Nicole, and he never expressly denied it; but he testified that he suggested to appellant that they not take advantage of Nicole. If Sgt Perez is believed, notwithstanding his ample motives to shift the blame to appellant, it may be inferred that he acted in conformity with his testimony that he “didn’t feel right” about sexual contact with Nicole and therefore did not assault her. Viewing the evidence in the light most favorable to the prosecution and drawing all permissible inferences, it may be inferred that if anything was done to Nicole, appellant rather than Sgt Perez did it.

35. However, what happened cannot be determined on the basis of the evidence. The Court of Military Review found the evidence of rape factually insufficient. See Art. 66(c), UCMJ, 10 USC § 866(c). That decision is not reviewable. See Art. 67(c), UCMJ, 10 USC § 867(c) (1989). Therefore, the only question before us is whether there is evidence from which a rational factfinder could find that appellant committed the indecent assault found by the Court of Military Review, ie., “by touching the victim’s vagina with his penis and/or hand.” Unpub. op. at 2.

36. We do not believe that the evidence would permit a rational factfinder to make such a finding. Nicole herself did not know what had happened. She asked appellant and Sgt Perez what had happened during the night, and Sgt Perez told her that she had been “real wild” and “was flirting with him and coming on to him.”

37. The possibility of a sexual assault was first suggested by Nicole’s friend, Lorna, on the day after Nicole’s drinking bout and overnight stay at appellant’s apartment. When Nicole told Lorna that she wasn’t sure what had happened, it was Lorna, not Nicole, who suggested that Nicole had been raped. This is of little or no evidentiary value as a “fresh complaint.” Cf ¶54(11) (Crawford, J., dissenting). It is nothing more than an allegation based on a suggestion planted by a friend.

38. Nicole’s clothing, including her sanitary napkin, were in place on the following morning. There were no bloodstains on her clothing or on the bedsheets. The medical examination revealed no evidence of trauma. While Nicole’s painful urination, bloody bowel movement, and general soreness between her legs are “consistent with” an indecent assault, they are also “consistent with” Nicole becoming intoxicated to the point of unconsciousness, vomiting repeatedly, being carried into the van, being passed from the back seat to the front seat of the van, nearly falling out of her seat in the van, and—as described by trial counsel in closing argument—being “carried like a rag doll” up to appellant’s apartment.

39. Even if Sgt Perez’ testimony is given the benefit of every permissible inference, he did not and could not testify that appellant indecently touched Nicole in the bedroom. The only sound he heard was appellant going with Nicole to the bathroom. The most that his testimony can establish is that appellant may have helped a very drunk and very sick young woman into the bathroom.

40. While the evidence, construed in the light most favorable to the prosecution, would show that appellant expressed a desire for sexual contact with Nicole, there is no testimony and no physical evidence suggesting that he acted on that desire. To conclude that appellant sexually assaulted Nicole is pure speculation.

41. Mere suspicion that something improper must have happened, with no direct or circumstantial evidence establishing what happened, is not sufficient. See United States v. Peterson, 1 USCMA 317, 320, 3 CMR 51, 54 (1952) (“[Suspicion, conjecture, and speculation cannot form the basis for factfinding action.”). Cf. United States v. Jones, 418 F.2d 818, 827 (8th Cir.1969) (conviction of “aiding and abetting ... requires more than a bare suspicion that one participated in” the crime). The Court of Military Review’s de novo review of the record left them uncertain about what had happened. They set aside the rape conviction but then further reflected their uncertainty by affirming an indecent assault “with his penis and/or hand.” We hold that the evidence is not legally sufficient even to justify that ambiguous finding.

42. Our holding does not condone the unprofessional and possibly illegal conduct of appellant and Sgt Perez. Whether appellant could have been charged and convicted of regulatory violations or dereliction of duty based on his improper conduct with a potential enlistee, or violations of local law by purchasing alcoholic beverages for a minor is not before us.

43. While the motives of Sgt Perez and appellant may have been less than honorable, we are not convinced that the evidence is sufficient for reasonable factfinders to find beyond a reasonable doubt every essential element of the offense found by the court below—here, indecent assault. See para. 63b(l), Part IV, Manual for Courts-Martial, United States, 1984 (“That the accused assaulted a certain person not the spouse of the accused in a certain manner.” (Emphasis added.)); see generally Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d 560.

44. Our holding might also be framed in terms of absence of establishment of a corpus delicti³—that is, a lack of substantial evidence that an indecent assault in fact occurred. See United States v. Maio, 34 MJ 215, 222 (CMA) (Cox, J., concurring), cert. denied, — U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 138 (1992). Accordingly, the conviction cannot stand.

Decision

The 1993 decision of the United States Navy-Marine Corps Court of Military Review as to Charge III and its specification and the sentence is reversed. The findings of guilty of the lesser-included offense of indecent assault are set aside and Charge III and its specification are dismissed. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals, which may reassess the sentence or order a rehearing on sentence on the basis of Charge IV.

Judges COX and WISS, concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . We also granted review of an issue regarding the independence of the Court of Military Review that has been resolved against appellant. See United States v. Mitchell, 39 MJ 131 (CMA), cert. denied, — U.S.-, 115 S.Ct. 200, 130 L.Ed.2d 131 (1994).

3 . We recognize that, in the more recent cases of this Court, the concept of corpus delicti has lost its importance as a predicate for admission of a confession. Compare United States v. Maio, 34 MJ 215, 218 (CMA) cert. denied, - U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 138 (1992); United States v. Rounds, 30 MJ 76, 80-81 (CMA), cert. denied, 498 U.S. 846, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990); United States v. Melvin, 26 MJ 145 (CMA 1988); and United States v. Yeoman, 25 MJ 1, 4 (CMA 1987), with United States v. Smith, 13 USCMA 105, 32 CMR 105 (1962); United States v. Mims, 8 USCMA 316, 24 CMR 126 (1957); United States v. Goodman, 1 USCMA 170, 2 CMR 76 (1952). That has no bearing, however, on the continued need for the total body of the evidence to establish a corpus delicti as a matter going to the sufficiency of the evidence of guilt. See United States v. Maio, 34 MJ at 222, 223 (Cox, J., concurring) ("Obviously, there is a distinct difference between legal sufficiency of evidence and admissibility.”; "Admissibility is one thing; legal sufficiency is another. Had the case been tried on the merits and had no external evidence been presented corroborating the occurrence of a crime, the military judge should have granted a motion for a finding of not guilty at the close of the prosecution’s case.”). See also United States v. Smith, 13 USCMA at 113, 32 CMR at 113 ("In the trial of a criminal case in Federal civilian courts it is necessary that the corpus delicti be proved," and “the same is recognized by paragraph 44f (3), Manual for Courts-Martial, United States, 1951, which provides that: ’... As to each offense charged, the burden is on the prosecution to prove beyond a reasonable doubt by competent evidence that the offense was committed ....’ [Emphasis supplied.]”); United States v. Mims, 8 USCMA at 319, 24 CMR at 129 (Ferguson, J., concurring in the result) ("The test for proof of the corpus delicti is in the area of legal sufficiency.... ”).