United States v. Lopez
201400373
| N.M.C.C.A. | Jan 18, 2017Background
- Appellant convicted at general court-martial, contrary to plea, of one specification of sexual assault (Article 120, UCMJ); sentence: three years confinement and a bad-conduct discharge, approved by convening authority.
- Victim (LCpl EH) and appellant were casual acquaintances who socialized at a nightclub on 24 Nov 2012; EH testified she drank, blacked out, and later awoke with the appellant on top of her having vaginal intercourse.
- EH testified the appellant said during the act, “don’t worry, I used a condom,” then she passed out again; she awoke next morning in the appellant’s apartment in disarray, with bite marks/scratches, vomit/urine, and wearing the same dress.
- Forensic evidence: two used condoms recovered from appellant’s trash; semen inside matched appellant and DNA on outside matched EH.
- Appellant challenged legal and factual sufficiency (arguing EH’s three drinks and a negative urine drug screen were insufficient to prove incapacity) and raised two ineffective-assistance claims regarding pretrial/trial investigation of blackouts and post-trial clemency consultation (the latter rendered moot by reprocessing).
- Military judge found EH credible and that she was incapable of consenting; this court affirmed after de novo review, rejecting ineffective-assistance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal and factual sufficiency: was victim incapable of consenting due to intoxication? | EH: evidence (testimony, physical state, DNA, condoms) proves incapacity. | Appellant: three drinks and negative drug screen insufficient; memory gaps inconsistent; he reasonably believed there was consent. | Affirmed: evidence viewed favorably to prosecution and on weighing record, conviction sustained beyond reasonable doubt. |
| Whether appellant committed the sexual act charged | EH: testified appellant’s penis was in her vagina; condoms and DNA corroborate. | Appellant: disputed circumstances and memory issues undermine proof of act. | Affirmed: physical/forensic evidence corroborated the sexual act. |
| Ineffective assistance — failure to investigate/present expert on blackouts and drugs | Appellant: TDC should have developed/presented evidence re: memory blackouts and drug interactions. | TDC: consulted toxicology expert (Dr. KM), reviewed records, tactically chose not to call expert to avoid opening door to inculpatory issues; expert and tox screen did not support alternative explanation. | Denied: counsel’s investigation and tactical choice were objectively reasonable; no prejudice shown. |
| Ineffective assistance — post-trial clemency consultation | Appellant: TDC failed to consult pre-clemency, requiring new post-trial processing. | Convening authority reprocessed case and new action rendered issue moot. | Moot: reprocessing cured alleged error; no relief warranted. |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (establishes de novo review for legal and factual sufficiency)
- United States v. Day, 66 M.J. 172 (legal sufficiency test: view evidence in light most favorable to prosecution)
- United States v. Turner, 25 M.J. 324 (legal sufficiency precedent)
- United States v. Barner, 56 M.J. 131 (drawing reasonable inferences for prosecution)
- United States v. Rankin, 63 M.J. 552 (factual sufficiency review standards)
- United States v. Akbar, 74 M.J. 364 (standard for ineffective assistance review in military cases)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- United States v. Pease, 74 M.J. 763 (unconscious or sleeping person cannot consent)
- United States v. Quick, 59 M.J. 383 (prejudice standard under Strickland)
- United States v. Smith, 48 M.J. 136 (tactical decisions fall within wide range of reasonable professional assistance)