United States v. Medina

UNITED STATES, Appellee
v.
Jose M. MEDINA, Staff Sergeant
U.S. Marine Corps, Appellant
No. 10-0262
Crim. App. No. 200900053
United States Court of Appeals for the Armed Forces
Argued September 28, 2010
Decided March 10, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and RYAN, J., joined. BAKER, J., filed a separate
opinion concurring in the result, in which STUCKY, J., joined.
Counsel
For Appellant: Captain Michael D. Berry, USMC (argued).
For Appellee: Commander Paul D. Bunge, JAGC, USN (argued);
Brian K. Keller, Esq. (on brief); Colonel Louis J. Puleo, USMC.
Amicus Curiae: Michelle M. Lindo McCluer, Esq., Jonathan E.
Tracy, Esq., Stephen A. Saltzburg, Esq., and Eugene R. Fidell,
Esq. (on brief) – for the National Institute of Military
Justice.
Military Judge: T. J. Sanzi
This opinion is subject to revision before final publication.
United States v. Medina, No. 10-0262/MC
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Jose M. Medina pleaded not guilty to willful
dereliction of duty, aggravated sexual assault, and assault
consummated by a battery in violation of Articles 92, 120, and
128, Uniform Code of Military Justice (UCMJ). He was convicted
of all charges at a general court-martial with members and was
sentenced to a reduction to E-1, forfeiture of all pay and
allowances for eighteen months, confinement for eighteen months,
and a bad-conduct discharge. The convening authority approved
confinement for fifteen months, but otherwise approved the
adjudged sentence. The United States Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and sentence. United
States v. Medina, 68 M.J. 587, 593 (N-M. Ct. Crim. App. 2009).
This is the second granted case this term that challenged
the constitutionality of Article 120, UCMJ, when an accused
raised the affirmative defense of consent to a charge of
aggravated sexual assault.1 In United States v. Prather, 69 M.J.
338, 343 (C.A.A.F. 2011), we concluded that the statutory
interplay among the relevant provisions of Article 120, UCMJ,
when an accused raised the affirmative defense of consent to a
1
We granted review of the following issue in this case:
Whether the lower court erred in holding that Article
120(c)(2), UCMJ, is not facially unconstitutional.
United States v. Medina, 69 M.J. 61 (C.A.A.F. 2010) (order
granting review).
2
United States v. Medina, No. 10-0262/MC
charge of aggravated sexual assault by engaging in a sexual act
with a person who was substantially incapacitated, resulted in
an unconstitutional burden shift to the accused. We further
held that where the members were instructed on this issue
consistent with the statutory scheme in Article 120, UCMJ, the
error could not be cured with standard “ultimate burden”
instructions. Id. at 344. While this case, like Prather,
involves the “substantially incapacitated” element of aggravated
sexual assault under Article 120(c)(2), UCMJ, under the unique
circumstances of this case the instructions provided by the
military judge did not employ the statutory provision regarding
the defense’s burden of proof on the affirmative defense of
consent. We therefore affirm the lower court’s decision.
BACKGROUND
The charge of aggravated sexual assault arose from an
incident that occurred when Lance Corporal CB hosted a barbeque
at her residence. Over the course of the afternoon and evening
CB consumed a large quantity of alcohol and at some point that
evening she was assisted upstairs to her bedroom by friends.
Her friends left her lying on her bed fully clothed except for
her shoes and they left the bedroom door open so they could
periodically check on her. Medina arrived sometime later that
evening and when he asked if CB was home, he was informed that
she was upstairs.
3
United States v. Medina, No. 10-0262/MC
In a statement provided to the Naval Criminal Investigative
Service, Medina stated that he went to CB’s room and found her
passed out. He stated that he woke her, they started talking,
and at her request they kissed and hugged. Medina stated that
when CB mentioned that the bedroom door was open, he closed and
locked it. He admitted that after he closed the door and
returned to the bed, CB was passed out on the bed and not
moving. He also admitted that he kissed her breasts and removed
her underwear and then inserted a portion of his finger into her
vagina. He stated that when she pushed his hand away, he
stopped. CB testified that after being assisted to her room,
she did not remember anything until she awoke to the feeling of
her arm being lifted, Medina kissing her neck and breasts, and
feeling something in her vaginal area.
Following the presentation of evidence during the findings
portion of the trial, the military judge held an Article 39(a),
UCMJ, session with counsel where he noted that he had earlier
provided counsel with copies of the proposed instructions that
he intended to provide the members. He asked counsel if either
of them had any objections to the proposed instructions or if
they had any requests for other instructions. Neither counsel
did. As to the issue of consent relative to the offense of
aggravated sexual assault, the military judge’s proposed
instructions provided:
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United States v. Medina, No. 10-0262/MC
The evidence has raised the issue of whether
Corporal [CB] consented to the sexual acts
concerning the offense of aggravated sexual assault,
as alleged in the Specification of Charge II.
Consent is a defense to that charged offense. . . .
. . . .
The prosecution has the burden of proving beyond a
reasonable doubt that consent did not exist.
Therefore, to find the accused guilty of the offense
of aggravated sexual assault . . . you must be
convinced beyond a reasonable doubt that, at the
time of the sexual acts alleged, Corporal [CB] did
not consent.2
The military judge subsequently instructed the members on
the elements of the offenses and the relevant definitions,
including the referenced instruction on the defense of consent.
The military judge also provided the standard prefatory and
summary instructions that specifically identified that the
burden of proof was on the Government to prove each and every
element beyond a reasonable doubt and that the burden never
shifts to the accused to establish innocence or to disprove the
facts necessary to establish each element of each offense.
After instructing the members, the military judge once again
asked counsel if they had any objection to the instructions
given or if they wanted to request any additional instructions.
Again, both counsel stated that they did not.
2
The military judge also instructed the members on the
affirmative defense of mistake of fact as to consent using
substantially the same wording.
5
United States v. Medina, No. 10-0262/MC
Medina appealed to the Court of Criminal Appeals arguing,
among other issues, that Article 120, UCMJ, violated his
constitutional due process rights by requiring him to disprove
the victim was substantially incapacitated before he could raise
the affirmative defense of consent. 68 M.J. at 589. The lower
court found that the statute did not deny Medina due process and
while the lower court did not determine whether the military
judge erred in instructing the members, it was convinced beyond
a reasonable doubt that the instructions did not prejudice him.
Id. at 589-92.
DISCUSSION
Before this court Medina renews the constitutional
arguments that he made at the Court of Criminal Appeals. The
constitutionality of a statute is a question of law we review de
novo. United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005).
In this court’s recent opinion in Prather, we analyzed the
shifting burdens found in Article 120(t)(16), UCMJ, and held
that the statutory interplay among Article 120(c)(2), UCMJ,
Article 120(t)(14), UCMJ, and Article 120(t)(16), UCMJ, resulted
in a unconstitutional burden shift to an accused. 69 M.J. at
343. We specifically held that under the circumstances
presented in that case, where the accused was required to prove
the affirmative defense of consent, the burden shifted to the
6
United States v. Medina, No. 10-0262/MC
defense to disprove an essential element of the offense.3 Id. at
343. We further held that where the members were instructed
consistent with the statutory scheme found in Article 120, UCMJ,
the unconstitutional burden shift was not cured by standard
“ultimate burden” instructions. Id. at 344. While the
underlying statutory scheme in Prather and in this case are the
same, and thus raised the potential for an unconstitutional
burden shift, in this case we have a distinctly different
instructional situation and the holding in Prather is therefore
not dispositive.
In Prather, the military judge instructed the members
consistent with the statutory scheme found in Article 120, UCMJ
-- that for consent to be a defense to the offense of aggravated
sexual assault, Prather was required to prove consent by a
preponderance of the evidence. Id. at 343. In this case, the
military judge did not instruct the members that the burden was
on the accused to prove the affirmative defense of consent by a
preponderance of the evidence. Instead the military judge
instructed the members that the evidence raised the defense of
3
In Prather we held that “[i]f an accused proves that the victim
consented, he has necessarily proven that the victim had the
capacity to consent, which logically results in the accused
having disproven an element of the offense of aggravated sexual
assault -- that the victim was substantially incapacitated.” 69
M.J. at 343.
7
United States v. Medina, No. 10-0262/MC
consent and that the Government had the burden of disproving the
defense beyond a reasonable doubt.
In Prather we noted that the Article 120, UCMJ, statutory
scheme in these circumstances placed military judges in an
impossible position and, “in order to provide an instruction
that accurately informed the panel of the Government’s burden
(as recommended by the Military Judges’ Benchbook), the military
judge would have to ignore the plain language of Article 120,
UCMJ.” Id. at 343 n.8. That appears to be exactly what
occurred in this case. The military judge did not employ the
terms of the statute with respect to the affirmative defense in
his instructions, but set forth no reasons in the record for his
deviation from the statutory scheme. It is not apparent from
the record whether the military judge interpreted the statute,
misinterpreted the statute, affirmatively severed a portion of
the statute on constitutional grounds, or simply overlooked a
portion of the statute. In any case, in the absence of a
legally sufficient explanation, it was error for the military
judge to provide an instruction inconsistent with the statute.
We must now determine whether Medina was prejudiced by that
error, where the interplay of the statutory provisions in
Article 120, UCMJ, would have resulted in an unconstitutional
burden shift, but where the members were not instructed of that
burden shift. “Whether a panel was properly instructed is a
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United States v. Medina, No. 10-0262/MC
question of law reviewed de novo.” United States v. Ober, 66
M.J. 393, 405 (C.A.A.F. 2008). “If instructional error is
found, because there are constitutional dimensions at play, [the
error] must be tested for prejudice under the standard of
harmless beyond a reasonable doubt.” United States v. Wolford,
62 M.J. 418, 420 (C.A.A.F. 2006) (citation and quotation marks
omitted).
In Prather we “agree[d] with the Government that we must
evaluate the instructions ‘in the context of the overall message
conveyed to the jury.’” 69 M.J. at 343 (citation omitted).
Here, there was no confusion in the instruction that the
military judge provided to the members on the defense of consent
or on the Government’s burden of proof related to that defense.
The military judge advised the members that consent was a
defense to the charge of aggravated sexual assault and the
Government had the burden of proving beyond a reasonable doubt
that consent did not exist.4 The members were not instructed of
the statutory scheme that required an accused to prove by a
preponderance of the evidence that the victim consented. The
instruction that was given was clear and correctly conveyed to
4
In Prather the court stated that no instruction adhering to the
statutory scheme in Article 120(t)(16), UCMJ, could have cured
the error. 69 M.J. at 344 n.9. As noted, the circumstances in
this case differ from those presented in Prather because the
members here were never instructed in adherence to the
objectionable statutory scheme. Thus, the instructions in this
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United States v. Medina, No. 10-0262/MC
the members the Government’s burden. See Martin v. Ohio, 480
U.S. 228, 234 (1987).5
Although, in the absence of a legally sufficient
explanation, the military judge’s decision not to employ the
terms of the statute constituted error, we are satisfied that
the error was harmless beyond a reasonable doubt.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
case, unlike those in Prather, did not reference the
constitutional infirmity.
5
Contrary to the suggestion of the separate opinion, “the only
course left open” is not to perpetuate an unconstitutional
statute. United States v. Medina, __ M.J. __ (1) (C.A.A.F.
2011) (Baker, J., joined by Stucky, J., concurring in the
result). Moreover, the problematic nature of the statute, in
light of the constitutional defects described in Prather,
caution against the suggestion in the separate opinion that this
court should provide uniform guidance as to how future cases
should be litigated and decided at the trial level. The
responsibility clearly rests with Congress to revise the statute
to remedy the unconstitutional statutory scheme. Although this
court follows the Supreme Court’s admonition to give a
constitutional saving construction when possible, the Supreme
Court has also reminded us that we do so only when the statute
is susceptible to such a construction. It is not the province
of this court to rewrite a statute to conform to the
Constitution, as that would invade the legislative domain. See
United States v. Stevens, 130 S. Ct. 1577, 1591-92 (2010).
10
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BAKER, Judge, with whom STUCKY, Judge, joins (concurring in
the result).
Although I concur in the result reached in this case, I
adhere to the position taken in my separate opinion in United
States v. Prather, 69 M.J. 338, 347 (C.A.A.F. 2011) (Baker, J.,
joined by Stucky, J., dissenting in part and concurring in the
result). However, the Court’s opinion in this case warrants
brief comment because it places practitioners in a difficult
position.
In Prather the majority concluded that no instruction
“could have cured the error where the members already had been
instructed in a manner consistent with the text of Article 120.”
Id. at 344 n.9. However, the Court did not conclude that the
statute was unconstitutional on its face. Now, in this case,
the Court concludes that “it was error for the military judge to
provide an instruction inconsistent with the statute.” United
States v. Medina, __ M.J. __ (8) (C.A.A.F. 2011). It is not
clear what is left on the table and how military judges are
supposed to now proceed in light of the Court’s positions in
Prather and Medina. The only course left open, it appears, is
for military judges to continue giving “erroneous” instructions
that nonetheless remove the prejudice embedded in Article 120,
UCMJ, beyond a reasonable doubt. Such a course either shows a
United States v. Medina, No. 10-0262/MC
curious attitude toward the law, or suggests that the
instructions are not in fact erroneous.
What is needed at this stage, while the political branches
consider when, whether, and how to correct Article 120, UCMJ, is
clear guidance from this Court that can be applied in a uniform
fashion throughout the armed forces.
2