United States v. Campbell
ACM 38875
| A.F.C.C.A. | Mar 28, 2017Background
- Appellant, a service member, was convicted at a judge-alone general court-martial of sexual assault by causing bodily harm, two specifications of abusive sexual contact by causing bodily harm, adultery, and providing alcohol to a minor; sentence included dishonorable discharge and 55 months confinement (approved with some forfeitures disapproved).
- Incidents arose from two series of events in 2014: (1) at a Cincinnati nightclub Appellant repeatedly touched a minor (AM) without consent and provided her alcohol; (2) at a Halloween party Appellant engaged in sexual intercourse with his intoxicated 17-year-old sister-in-law (MH) while she was unconscious.
- Defense moved to exclude the Government’s Mil. R. Evid. 413 propensity evidence; the military judge admitted several charged and uncharged sexual-act allegations after conducting Rule 403 balancing.
- Appellant argued on appeal that the judge improperly used charged offenses as propensity evidence under Mil. R. Evid. 413, that trial counsel were ineffective (including for not moving to dismiss for R.C.M. 707 speedy-trial violations), and that the providing-alcohol-to-a-minor conviction was factually insufficient as to the terminal element.
- The court found the judge abused discretion by treating some charged offenses as Mil. R. Evid. 413 propensity evidence but concluded the error was not prejudicial given the strength of the direct evidence and the judge’s stated application of proper burdens; ineffective-assistance and factual-sufficiency claims were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility: Use of charged offenses as Mil. R. Evid. 413 propensity evidence | Military judge improperly considered other charged sexual offenses as propensity evidence under Mil. R. Evid. 413 | Admission was within discretion; judge conducted 403 balancing and would still apply proper burden as factfinder | Admission of charged offenses as propensity evidence was erroneous but harmless; no prejudice to findings |
| Standard of review for alleged constitutional error from propensity use | Appellant: constitutional error requiring harmless-beyond-a-reasonable-doubt review (per Hills) | Government: apply Article 59(a) harmlessness standard because judge-alone trial lacked the member-instruction constitutional infirmity | Applied Article 59(a) harmless-error review; no constitutional prejudice found |
| Ineffective assistance — failure to move to dismiss under R.C.M. 707 (speedy trial) | Counsel ineffective for not moving to dismiss Charges I & II for R.C.M. 707 violation (arraignment delay) | Delays were properly excluded by convening authority/military judge; defense motion would have failed | Counsel not ineffective; calculation of excluded days meant trial within R.C.M. 707 limits |
| Factual sufficiency of providing alcohol to a minor (Article 134 terminal element) | Appellant argued evidence insufficient to show conduct was of a nature to bring discredit on the armed forces | Government tied alcohol provision to abusive sexual contact in public with a high-school minor | Court, after independent weighing, found evidence proved the terminal element beyond a reasonable doubt |
Key Cases Cited
- United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (error to use charged sexual misconduct as Mil. R. Evid. 413 propensity evidence when those acts are the Government’s proof of the offenses)
- United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (standard of review for admission of evidence is abuse of discretion)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005) (review of exclusions of time under R.C.M. 707 examines whether decision to exclude was an abuse of discretion)
- United States v. Mason, 45 M.J. 483 (C.A.A.F. 1997) (presumption that judges know and apply the law)
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (appellate court’s de novo factual-sufficiency review standard)