The Court of Appeals for the Armed Forces recently granted a petition for review in the Army case of United States v. Mendoza. SSG Mendoza was stationed in Korea with a female Specialist. The Specialist had been off post for dinner and drinks and then returned and joined a group that included SSG Mendoza at a barbecue outside of the barracks. By all accounts, the Specialist was extremely intoxicated and flirtatious. One of her friends escorted her to her barracks room, but she later came back out. CCTV footage showed her accompanying SSG Mendoza to his barracks room and then emerging with him an hour later.
The Specialist had no memory of the evening after 2300 and awoke in her room to SSG Mendoza knocking on her door to return her shoes. Eventually, the Specialist received a forensic examination and semen consistent with SSG Mendoza was found on cervical and vaginal swabs. SSG Mendoza initially denied sexual contact, but eventually admitted that there had been sexual intercourse and that he knew that the Specialist was too intoxicated to consent to the sexual activity.
At trial, the Government charged SSG Mendoza with sexual assault. The elements of the charged offense included: 1) that SSG Mendoza committed a sexual act upon the Specialist and 2) that he did so without the Specialist’s consent. Although the Specialist never recovered any memory of the event, the Government presented the evidence of her intoxication, the evidence of the sexual act, and SSG Mendoza’s confession. The members found SSG Mendoza guilty.
On appeal to the Army Court of Criminal Appeals, SSG Mendoza argued that his conviction was not factually sufficient. In a factual sufficiency review of a case that occurred before January 1, 2021, the appellate court must be convinced beyond a reasonable doubt that the servicemember is guilty of the offense charged. The majority of the three-member Army appellate panel found that the evidence of the Specialist’s intoxication proved beyond a reasonable doubt that SSG Mendoza was guilty. The Court affirmed his conviction.
However, one appellate judge did come to a different conclusion. He found the conviction to be both factually and legally insufficient. An appellate court reviews legal sufficiency by viewing the evidence in the light most favorable to the prosecution and then determining whether any rational trier of fact could have found each of the essential elements beyond a reasonable doubt. The dissenting judge wrote that he found that while the Government did prove beyond a reasonable doubt that the Specialist was incapable of consenting, it did not prove beyond a reasonable doubt that she actually did not consent.
The Government had chosen to charge the offense as a lack of consent offense. Another paragraph within Article 120, UCMJ, allows the Government to charge an individual with sexual assault upon someone who is incapable of providing consent due to intoxication. The dissenting judge determined that the Article was written with separate and distinct theories of liability and that treating the lack of consent theory as encompassing all others would make the other theories superfluous. An interpretation of the statute that renders several portions superfluous is contrary to the canons of statutory interpretation. Therefore, he reasoned, the separate theories must cover separate and distinct types of conduct. Because the Government charged the offense as occurring without the Specialist’s consent, they were required to prove that she did not consent. The judge found that the Government had failed to do so, and so he would have set the conviction aside.
SSG Mendoza then petitioned the CAAF to review his case. This highest military court does not have the statutory authority to review the factual sufficiency of offenses, as the UCMJ assigns that task solely to the service courts of appeal. However, the CAAF can review legal sufficiency. They have granted SSG Mendoza’s petition to review the legal sufficiency of his conviction. The CAAF opinion will have wide-ranging implications as the Government’s charging decisions in sexual assault cases are frequently challenged to the service courts of appeal.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.