United States v. Solis
2016 CCA LEXIS 477
| N.M.C.C.A. | 2016Background
- Appellant, a Marine staff sergeant and recruiter, was convicted at a general court-martial of violating a lawful order and sexual assault (Articles 92 and 120, UCMJ); sentence: 24 months confinement, reduction to E‑1, bad-conduct discharge.
- Victim (LH), a poolee recruited by appellant, accompanied him to a wrestling tournament in Fresno; appellant bought Jägermeister and taught LH a drinking game after she had also smoked marijuana.
- LH consumed multiple small cups and penalty cups of the mixed drink, became dizzy and semiconscious on a couch, then later woke on a bed naked from the waist down with the appellant penetrating her; she testified she could not consent.
- LH did not report the assault immediately; she later disclosed it after being discharged from DEP and during preparations for enlistment; she also revealed, at trial, prior childhood molestation.
- Trial evidence included Facebook messages arranging the trip and payment, bank records, witness observations, LH’s in‑court testimony, and testimony about her post‑assault vaginal soreness.
- Appellant raised constitutional vagueness of Article 120(b)(3)(A), sufficiency of the evidence, alleged evidentiary and instructional errors, foundation for Facebook messages, prosecutorial misconduct and panel bias; the court affirmed conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of Art. 120(b)(3)(A) (facial) | Statute is vague: "impaired by alcohol" lacks a clear line for incapacity to consent | Statute targets persons "incapable of consenting" and includes a scienter element (know or reasonably should know), providing fair notice | Not facially vague; plain meaning of "incapable" and mens rea requirement cure vagueness |
| Vagueness (as‑applied) | Appellant could not reasonably know LH was incapable; blackout versus impaired leaves uncertain when consent is absent | LH’s described inability to appreciate or communicate consent and appellant’s conduct (providing alcohol, present when she collapsed) put him on notice | Not vague as applied; facts show LH was incapable and appellant knew or reasonably should have known |
| Legal and factual sufficiency | LH may have lied or misremembered (dream/flashback); intoxication and prior trauma could cause mistake | Corroborating contemporaneous evidence (messages, bank record, witness, soreness) and LH’s credible account support conviction | Evidence legally and factually sufficient; conviction affirmed |
| Admission/use of LH’s prior childhood molestation | (Appellant) Failure to give limiting instruction invited misuse and prejudice | Prosecution and defense both used the evidence; disclosure was not sensational and counseled against special instruction; defense forfeited request | No plain error in declining a special MIL. R. EVID. 412 limiting instruction |
| Foundation for Facebook messages | Appellant argued insufficient authentication that messages came from him | LH identified the account/profile picture and message content and tied messages to events she corroborated | Military judge did not abuse discretion; authentication adequate |
Key Cases Cited
- United States v. Disney, 62 M.J. 46 (C.A.A.F.) (standard of review for statutory constitutionality)
- Hill v. Colorado, 530 U.S. 703 (U.S. 2000) (vagueness and arbitrary enforcement principles)
- Hoffman Estates v. Flipside, 455 U.S. 489 (U.S. 1982) (scienter requirement mitigates vagueness)
- Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (invalidating vague standards that permit arbitrary enforcement)
- United States v. Pease, 74 M.J. 763 (N-M. Ct. Crim. App.) (definition of "incapable of consenting")
- United States v. Washington, 57 M.J. 394 (C.A.A.F.) (standards for factual and legal sufficiency review)
- United States v. Turner, 25 M.J. 324 (C.M.A.) (legal and factual sufficiency tests)
- United States v. Dorsey, 16 M.J. 1 (C.M.A.) (MIL. R. EVID. 412 and limiting instructions)
- United States v. Girouard, 70 M.J. 5 (C.A.A.F.) (plain‑error standard)
- United States v. Freeman, 65 M.J. 451 (C.A.A.F.) (abuse of discretion standard for evidentiary rulings)