United States v. First Lieutenant EDGAR HUERTALOPEZ
ARMY 20150059
| A.C.C.A. | Jan 19, 2017Background
- Appellant, a first lieutenant and officer-in-charge of a logistics support team at Fort Irwin/NTC (Apr–Jun 2014), directed sexually suggestive comments and gestures toward PFC AM and asked to meet her in secluded places.
- Appellant admitted to CID he discussed sex with PFC AM, asked to have sex in secluded locations, and once touched her breast; PFC AM testified she felt uncomfortable and rebuffed his advances.
- Charged at a general court-martial with, among other offenses, violating AR 600-20 para. 4-14(b) (prohibited relationship), making a false official statement, and abusive sexual contact; convicted by an officer panel and sentenced to dismissal and a reprimand.
- On appeal, appellant argued his rebuffed advances did not constitute a ‘‘relationship’’ under AR 600-20 and thus could not sustain the Article 92 specification for violating a lawful general regulation.
- The government conceded the facts did not establish a completed prohibited relationship but urged conviction for the lesser-included offense of attempt to violate AR 600-20 under Article 80, UCMJ.
- The court agreed the evidence did not prove an actual prohibited relationship but did prove intent and substantial steps toward forming one, and therefore substituted and affirmed a conviction for attempt (Article 80); the remaining convictions and sentence were affirmed after reassessment.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether rebuffed sexual advances constituted a prohibited "relationship" under AR 600-20 | Rebuffed verbal/physical advances do not form a "relationship"; conviction under AR 600-20 should be set aside | Although no completed relationship, appellant intended to form one and took substantial steps, so conviction for attempt (Article 80) is appropriate | Court: Advances were rejected so no completed prohibited relationship; affirmed lesser-included offense of attempt to violate the regulation under Article 80 |
| Whether evidence supports criminal intent and substantial steps for attempt | N/A (defensive focus on absence of relationship) | Evidence (comments, touching, arranged secluded meetings) shows intent and actions beyond mere preparation | Court: Evidence shows intent and physical steps sufficient for attempt |
| Whether substitution of lesser-included offense is appropriate | Requested dismissal of AR 600-20 violation | Government requested conviction for attempt; cited authority allowing substitution/affirmation of lesser-included offenses | Court: Substituted and affirmed attempt conviction under Article 80 per applicable precedent |
| Whether sentence should be reassessed after modification of findings | N/A | Court may reassess under Winckelmann/Sales and did so | Court: Reassessed and affirmed the sentence as at least that adjudged; restored rights affected by the set-aside portion |
Key Cases Cited
- United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002) (victim conduct relevant to whether a prohibited relationship exists)
- United States v. Moorer, 15 M.J. 520 (A.C.M.R.) (supply clerk attempted to violate order by asking a trainee for a date)
- United States v. LaFontant, 16 M.J. 236 (C.M.A. 1983) (affirming treatment of lesser-included offenses)
- United States v. King, 71 M.J. 50 (C.A.A.F. 2012) (procedures for affirming lesser-included offenses)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards for sentence reassessment on appeal)
- United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (authorizing reassessment of sentence on appeal)