United States v. Specialist JAMES E. FORD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JAMES E. FORD
United States Army, Appellant
ARMY 20110417
Headquarters, U.S. Army Maneuver Center of Excellence
Stephen E. Castlen, Military Judge
Colonel Mary M. Foreman, Staff Judge Advocate
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Jacob D. Bashore,
JA; Captain Ian M. Guy, JA (on brief); Captain Ian M. Guy, JA; William E. Cassara,
Esquire (on supplemental brief and supplemental reply brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Sasha Rutizer, JA (on brief); Major Robert A. Rodrigues, JA; Captain
Steve T. Nam, JA (on supplemental brief).
31 October 2013
--------------------------------
SUMMARY DISPOSITION
--------------------------------
KRAUSS, Judge:
A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of three specifications of rape, one specification of
forcible sodomy, two specifications of assault consummated by a battery, and one
specification of adultery in violation of Articles 120, 125, 128 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 925, 928 and 934 (2006) [hereinafter
UCMJ]. Appellant was acquitted of additional specifications of aggravated sexual
contact, forcible sodomy, and housebreaking. The court-martial sentenced appellant
to a dishonorable discharge, confinement for thirty-five years, forfeiture of all pay
and allowances, and reduction to the grade of E -1. The convening authority
approved thirty-four years and nine months of confinement, but otherwise approved
the remainder of the sentence as adjudged. The convening authority also credited
appellant with nine days of confinement against the sentence to confinement.
FORD – ARMY 20110417
This case is before the court for review under Article 66, UCMJ. Appellant
asserts that the evidence is insufficient to establish his guilt and that he was denied
the right to confront the witnesses against him by limitation imposed on cross -
examination by the military judge. Appellant also argues t hat the convening
authority action is incomplete because it failed to address disapproval of the
adultery charge.
Appellant stands convicted of sexually assaulting three women: a former
girlfriend, AE; his wife, JF; and a woman with whom he had previously
communicated on the internet, but had just met in person the day of his attack upon
her, MD. The extent to which each of the women may have consented to the sexual
acts alleged and the extent to which appellant may have been mistaken about that
consent were fully litigated. None of the women were related to or acquainted with
the other prior to trial, and there is no evidence that the women met or spoke to each
other about their experiences with appellant at all prior to or during the court -
martial.
Having thoroughly considered the record, recognizing that the panel members
saw and heard the witnesses, we find the evidence of appellant’s guilt sufficient and
harbor no reasonable doubt about it. Art. 66(c), UCMJ; United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Appellant effectively raised
questions concerning the credibility of each of the alleged victims; however, those
questions do not amount to any reasonable doubt in this case. We find much of
appellant’s own testimony inculpatory and lacking credibility in certain important
respects, including description of his escape from the scene of his final assault
(captured in the audio recording of a neighbor’s 911 call). Indeed, the fact of his
effort to escape, in conjunction with the remainder of the evidence that includes
proper consideration of the evidence of each of the sexual assaults as relevant to
establish the propensity of appellant to commit the other sexual assaults, leaves no
reasonable doubt of his guilt in relation to each of those offenses for which he was
found guilty under Articles 120 and 125. 1 Washington, 57 M.J. at 399; United States
v. Pleasant, 71 M.J. 709 (Army Ct. Crim. App. 2012); United States v. James, 63
M.J. 217, 221-22 (C.A.A.F. 2006) (citing United States v. Sioux, 362 F.3d 1241 (9th
Cir. 2004)); Military Rule of Evidence [hereinafter Mil. R. Evid.] 413.
In relation to appellant’s complaints over confrontation limits, we find no
abuse of discretion by the judge except, perhaps, in one instance. See generally
Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986); United States v. Collier, 67
M.J. 347, 352-53 (C.A.A.F. 2009). The judge denied the defense the opportunity to
establish the context of an allegedly false statement made by MD some months after
the assault. This statement was made as the victim attempted to obtain support from
1
We also find the evidence factually sufficient to establish appellant’s guilt as
alleged under Article 128, UCMJ. Washington, 57 M.J. at 399.
2
FORD – ARMY 20110417
the commander of another soldier she asserted was the father of her child. When the
commander asked whether MD had had sexual intercourse with anyone else in the
previous six months, she said no. The judge permitted appellant to elicit her denial,
but refused defense the opportunity to set i t in context, apparently on the grounds
that to allow the evidence would violate Mil. R. Evid. 412.
We agree with appellant that evidence of the context of the denial would not
violate Mil. R. Evid. 412 but was, rather, relevant to inform judgement on th e
credibility of the witness—whether she was inclined to lie in order to obtain some
benefit. However, we disagree with appellant on the matter of prejudice and find, if
error, that error was harmless beyond any reasonable doubt. Collier, 67 M.J. at 355.
MD’s explanation for the denial was credible, and the evidence of appellant’s guilt
is sufficient to overcome any doubt that might otherwise be raised in relation to
MD’s credibility. We find “no reasonable possibility that the error contributed to
the contested findings of guilty” nor do we find that the judge’s ruling “‘essentially
deprived appellant of his best defense’ that ‘may have tipped the credibility balance
in Appellant’s favor.’” Id. at 355-56 (quoting United States v. Moss, 63 M.J. 233,
239 (C.A.A.F. 2006)). MD escaped appellant’s assault by the skin of her teeth, ran
naked into the street, obviously distraught, seeking help and screaming rape, and
appellant attempted to escape the scene by screeching out of the neighborhood in his
car despite neighbors’ efforts to stop him. 2
Appellant’s efforts to attack MD’s credibility otherwise by delving into her
mental condition and child custody issues were at best tenuous and speculative,
lacking sufficient evidentiary support to permit reasonable i nquiry and the judge’s
denial of any such inquiry was no abuse of discretion. Id. at 352-53; Mil. R. Evid.
401-403.
Finally, the convening authority approved all of the findings of guilty in the
action. However, it is apparent, from the entire record a nd the convening authority’s
explicit acceptance of the staff judge advocate’s recommendation on the matter, that
the convening authority intended to disapprove the finding of gui lty of adultery
alleged in the Additional Charge and its specification. Because the action is not
ambiguous or incomplete in the sense necessary to prompt return for correction,
instead, we will simply disapprove that finding ourselves. See generally United
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012); United States v. Politte, 63 M.J.
24 (C.A.A.F. 2006).
2
Nor do we find any merit to the suggestion that the fact of MD’s pregnancy
prejudiced appellant because the panel may have concluded it was he who
impregnated her. No such evidence was elicited from the witness, otherwise
introduced, or characterized as such in argument. We will not speculate as to the
possibility of any panel member’s speculation on the matter.
3
FORD – ARMY 20110417
After consideration of the entire record, the parties’ briefs, and those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), we set aside the finding of guilty as to the Additional Charge and its
specification and dismiss the same. The remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986)
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), the court affirms the
sentence. All rights, privileges, and property of which appellant has been deprived
by virtue of the finding of guilty set aside by the decision are or dered restored.
Senior Judge YOB and Judge LIND concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
ClerkofofCourt
Clerk Court
4