United States v. Roblero
ACM 38874
| A.F.C.C.A. | Feb 17, 2017Background
- Appellant, an Airman, was convicted at a general court-martial by members of two counts of sexual assault by causing bodily harm (penetration with fingers and penis) and sentenced to a dishonorable discharge, forfeitures, reduction to E‑1, and reprimand; convening authority approved with reduced forfeitures.
- The victim, SSgt RC, had consensual kissing earlier in the day but testified she repeatedly told Appellant to “stop” and “wait,” froze during digital penetration, and cried during intercourse; she made a restricted then unrestricted report and engaged in pretext communications with Appellant.
- Appellant conceded sexual activity but argued the acts were consensual or, alternatively, he had a reasonable mistake of fact as to consent.
- At sentencing the victim submitted an unsworn written and oral statement that included a paragraph advocating a specific confinement term and recommending sex-offender treatment; defense objected.
- Appellant raised issues on appeal: factual sufficiency, the trial court’s reasonable-doubt instruction (procedural), due process error from the victim’s unsworn statement, the constitutionality of a non-unanimous panel, and ineffective assistance of counsel; this court affirmed the findings and sentence, finding some trial error harmless.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Factual sufficiency of convictions | Appellant argued evidence did not prove non-consent beyond reasonable doubt or that he wasn’t reasonably mistaken | Victim testimony and Appellant’s pretext admissions showed non-consent and lack of reasonable mistake | Convictions are factually sufficient; appellate court, reviewing de novo, found guilt proved beyond a reasonable doubt |
| Reasonable-doubt instruction form | Appellant argued the mandated instruction was erroneous | Court noted McClour controls; absent objection at trial, no plain error | No reversible error (instruction not plain error without timely objection) |
| Victim’s unsworn statement at sentencing | Appellant argued admission violated due process because it included impermissible advocacy for a particular sentence and rehabilitative recommendations | Government: victim may be reasonably heard; presentation both written and oral now authorized by R.C.M. 1001A | Military judge abused discretion by admitting final paragraph advocating a specific sentence and treatment recommendation, but error was harmless because sentence included no confinement |
| Panel unanimity and size | Appellant contended a non-unanimous nine-member (reduced to eight) panel violated due process | Government relied on precedent upholding Congress’s military court structure and Spear decision | Rejected Appellant’s challenge; appellant failed to overcome heavy burden to upset statutory scheme; panel constitutionally adequate |
| Ineffective assistance of counsel (Grostefon claim) | Appellant alleged counsel erred withdrawing mistrial motion, not compelling victim’s texts/journal, and not interviewing victim | Counsel explained tactical reasons: avoiding harm from unknown messages, strategic decisions based on Article 32 transcript and prior cross-exam, and concern producing greater damage | Strickland test not met; performance reasonable and no prejudice shown |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (establishes appellate factual-sufficiency standard in courts-martial)
- United States v. Reed, 54 M.J. 37 (C.A.A.F. 2000) (framework for appellate review of factual sufficiency)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- United States v. Paige, 67 M.J. 442 (C.A.A.F. 2009) (mistake-of-fact defense requires subjective and objective reasonable belief in consent)
- United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001) (sentencing evidence governed by Mil. R. Evid. 403 and R.C.M. rules)
- United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) (test for prejudice from sentencing error is whether error substantially influenced the sentence)
- United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (victim or witness may not recommend a specific sentence)