United States v. Upshaw
201600053
| N.M.C.C.A. | May 31, 2017Background
- Appellant, a Navy Hospital Corpsman Third Class, was convicted at a general court-martial of two specifications of abusive sexual contact and one specification of sexual assault; sentence: 10 years confinement, reduction to E‑1, forfeitures, dishonorable discharge (punitive discharge later excepted from execution).
- Two unrelated male Marine victims alleged similar events: both met appellant at same Oceanside bar, were heavily intoxicated, accepted rides/offers to sleep, and later woke to sexual contact or assault.
- Trial counsel moved to admit the two charged incidents as propensity evidence under Mil. R. Evid. 413; the military judge admitted the charged misconduct under the rule and instructed the members accordingly.
- After CAAF’s decision in United States v. Hills, which held Mil. R. Evid. 413 does not encompass charged misconduct, the appellant challenged admission of charged offenses as propensity evidence and the related jury instruction.
- The court found admission of charged misconduct under Mil. R. Evid. 413 and the accompanying instruction erroneous and prejudicial as to the sexual-assault conviction, but concluded the two abusive-sexual-contact convictions stood because those findings were supported independently by strong evidence.
- Remedy: affirm abusive sexual contact convictions; set aside the sexual-assault conviction and sentence; remand with authorization for rehearing; order correction of the court-martial order consolidating specifications.
Issues
| Issue | Upshaw's Argument | Government's Argument | Held |
|---|---|---|---|
| 1. Factual sufficiency of sexual-assault conviction | Evidence insufficient given victim blackout and lack of direct observation | Forensic and circumstantial evidence (DNA, injuries, intoxication) prove assault beyond a reasonable doubt | Court: Evidence is factually sufficient as to Cpl K.I.; conviction supported beyond a reasonable doubt |
| 2. Admission of artwork to show victim knew appellant’s sexual orientation | Evidence relevant to victim’s knowledge of appellant’s orientation (proffered) | Trial judge excluded under relevance rules (issue rendered moot) | Moot (not decided because remand made other issues dispositive) |
| 3. Instruction on variance for sexual-assault charge | Instruction effectively altered substantive act alleged and prejudiced defense | Instruction tracked trial judge’s rulings; prosecution relied on instruction | Moot (not addressed on merits because remand/other rulings controlled) |
| 4. Use of charged misconduct as propensity evidence under Mil. R. Evid. 413 | Admission violates presumption of innocence and requires proof beyond reasonable doubt for each offense | At trial, government relied on 413 to connect separately charged incidents and urged preponderance bridging to other offenses | Court: Error—Mil. R. Evid. 413 cannot be used to admit charged misconduct as propensity evidence; the erroneous instruction here was constitutional error that likely contributed to the sexual-assault conviction, so that conviction set aside and remanded for rehearing |
Key Cases Cited
- United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (Mil. R. Evid. 413 does not permit admission of charged sexual misconduct as propensity evidence)
- United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006) (constitutional error in jury instructions reviewed for harmlessness beyond a reasonable doubt)
- United States v. Moran, 65 M.J. 178 (C.A.A.F. 2007) (harmless-error standard: whether error might have contributed to conviction)
- United States v. Othuru, 65 M.J. 375 (C.A.A.F. 2007) (assessing importance of error relative to entire record)
- United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (standards for appellate factual-sufficiency review)
- United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (defining reasonable doubt for factual-sufficiency review)
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (appellate court’s scope in factual-sufficiency review)