                       UNITED STATES, Appellee

                                    v.

             Jesus GUTIERREZ Jr., Private First Class
                       U.S. Army, Appellant

                              No. 14-0009

                       Crim. App. No. 20120104

       United States Court of Appeals for the Armed Forces

                       Argued January 14, 2014

                        Decided March 20, 2014

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Captain Brian D. Andes (argued); Colonel Kevin
M. Boyle, Lieutenant Colonel Peter Kageleiry Jr., and Major
Vincent T. Shuler (on brief).

For Appellee: Captain T. Campbell Warner (argued); Colonel John
P. Carrell, Lieutenant Colonel James L. Varley, and Major
Catherine L. Brantley (on brief).

Military Judge:   Christopher Fredrikson


       This opinion is subject to revision before final publication.
United States v. Gutierrez, No. 14-0009/AR

       Judge ERDMANN delivered the opinion of the court.

       An enlisted panel sitting as a general court-martial found

Private First Class Jesus Gutierrez Jr. guilty of stalking in

violation of Article 120a, and not guilty of rape in violation

of Article 120, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 920, 920a (2012).    The convening authority approved

the adjudged sentence of reduction to the grade of E-1,

forfeiture of all pay and allowances, confinement for twelve

months and a bad-conduct discharge.   The United States Army

Court of Criminal Appeals (CCA) affirmed the findings and

sentence.    United States v. Gutierrez, No. ARMY 20120104 (A. Ct.

Crim. App. July 8, 2013).    At trial, the government relied on

the evidence supporting the rape charge to also support the

“course of conduct” element required for a conviction under the

stalking offense.    We granted review to determine whether the

evidence of stalking was legally sufficient where the panel

acquitted Gutierrez of the rape offense.1    We hold that the

evidence was legally sufficient and therefore affirm the

decision of the CCA.

1
    We granted the following issue:

       Whether the evidence of stalking was legally
       sufficient where Appellant was acquitted of rape and
       the prosecution relied on the evidence of rape to
       prove stalking.

United States v. Gutierrez, 73 M.J. __ (C.A.A.F. 2013) (order
granting review).



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United States v. Gutierrez, No. 14-0009/AR

                             Background

       While stationed in Germany, Gutierrez and his wife met AM,

a German national.   AM became good friends with Mrs. Gutierrez

but did not have much to do with Gutierrez and testified she had

only encountered him a few times.     When AM informed Mrs.

Gutierrez that she had difficulty getting packages she had

ordered on the Internet delivered to her German address, Mrs.

Gutierrez offered to let her use the Gutierrez’s Army Post

Office (APO) address.

       After having an initial package delivered to the

Gutierrez’s APO address, AM forgot to change the Internet

delivery address back to her home address and as a result, a

number of additional packages were sent to the Gutierrez’s home.

Around that time the friendship between AM and Mrs. Gutierrez

deteriorated and although AM was able to receive most of her

packages, she had difficulty in getting the final three.      It

reached a point where AM threatened to contact the military

police if she did not receive the packages.    Finally, Gutierrez

called AM and informed her that he would deliver the packages to

her.

       Mrs. Gutierrez testified that Gutierrez had an Alcoholics

Anonymous meeting on the evening of August 10, 2010, and after

the meeting he left their home to deliver the packages to AM.

Mrs. Gutierrez further testified that while it took between



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United States v. Gutierrez, No. 14-0009/AR

fifteen and twenty minutes to walk from their home to AM’s home,

Gutierrez was gone between sixty and ninety minutes.

     AM testified as to what happened when Gutierrez arrived at

her home that evening:   he pushed his way into her apartment,

dropped her packages on the floor and told her that he “needed a

hug”; Gutierrez started kissing her neck despite her protests;

Gutierrez then began pulling on her shorts, repeatedly saying “I

want it” and “just one time”; Gutierrez then pushed her onto the

bed, pulled her shorts down and penetrated her vagina with his

penis in spite of her attempts to push him away; after the

intercourse, Gutierrez told AM “I’ll call you,” and left her

apartment.

     Gutierrez called AM the next day but AM did not answer her

phone.   Gutierrez then began a pattern of calling AM and sending

her text and Facebook messages.    AM blocked Gutierrez on her

Facebook page, but he was able to contact her by using another

person’s account.   AM avoided Gutierrez’s phone calls and when

she did respond to his text messages, her responses were

essentially:   “leave me alone.”

     A few weeks later, sometime in August or September,

Gutierrez arrived uninvited at AM’s apartment building around

2:00 a.m.    AM testified that upon his arrival the phone calls

and text messaging increased and Gutierrez started ringing her

doorbell.    AM testified that Gutierrez kept his finger on the



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United States v. Gutierrez, No. 14-0009/AR

doorbell for about an hour, ringing it constantly.    During this

time he awakened AM’s nine-year-old daughter.   AM told him to

leave, threatening to call the police or his wife.    Gutierrez

eventually left.

     In the early morning hours of October 2, 2010, Gutierrez

again called and messaged AM multiple times.2   AM testified that

because of the calls and texts she was afraid he would come over

to her house again.   AM told him to stop calling.   Gutierrez

later arrived at AM’s apartment building and again began ringing

her doorbell from outside the building.   Gutierrez gained

unauthorized entrance to the building and began kicking AM’s

apartment door.    AM and her nine-year-old daughter were

“freaking out” and AM called a friend, Staff Sergeant (SSgt) DR.

SSgt DR testified that when AM called him she was in tears, and

was emotional and stressed as if “she was in fear.”   SSgt DR

testified that AM told him someone was trying to break into her

house.   He further testified that in the background he could

hear the doorbell ringing, her cell phone ringing and “banging

on the door.”   SSgt DR testified that AM told him “she was

afraid for her daughter and herself” and that “if this person

came in she was afraid of what her daughter might see happen, or




2
  None of the messages sent by Gutierrez during this period of
time contained overt threats, but were repeated requests for AM
to talk with him.

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United States v. Gutierrez, No. 14-0009/AR

something happen to her daughter.”      SSgt DR called the military

police and stayed on the phone until they arrived.

     When the military police arrived they saw Gutierrez

“pulling on the door, buzzing the doorbell” and “yelling

something into the buzz system.”       After Gutierrez was detained

by the military police and brought to AM’s door for

identification he lunged toward AM saying, “let me in” and then

began blowing kisses, licking his lips and making sexual

gestures with his tongue.   When the police responded to AM’s

apartment that night, AM also reported the August 10 sexual

assault.   AM was taken to the military police station to make a

statement and during her interview Gutierrez continued to call

her cell phone.   The special agent who had interviewed AM

testified that AM’s phone rang enough times to distract him.

Following the investigation, Gutierrez was charged with rape

under Article 120, UCMJ, and stalking under Article 120a, UCMJ.

                     Arguments of the Parties

     Gutierrez argues that since the government relied upon the

evidence underlying the rape allegation as evidence of a “course

of conduct” required to establish the offense of stalking, the

panel’s acquittal on that charge removed that incident as a

possible basis for establishing a “course of conduct.”      Although

Gutierrez concedes that his conduct on October 2, 2010, may have

constituted stalking conduct, he argues that this single October



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United States v. Gutierrez, No. 14-0009/AR

2 incident was the only possible incident of stalking conduct.

Since a “course of conduct” under Article 120a, UCMJ, requires

two or more occasions of stalking conduct, he argues that the

evidence was legally insufficient to establish a “course of

conduct.”   Gutierrez further asserts that without the context of

his initial August 10 visit to AM’s home culminating in rape, a

panel could not have found that the subsequent nonthreatening

phone calls, text messages and visits would have induced fear of

bodily harm in a reasonable person.   Gutierrez goes on to argue

that without the August 10 visit, the evidence failed to

establish that he had knowledge or should have had knowledge

that AM would be placed in reasonable fear of bodily harm.

Other than the October 2 incident, Gutierrez argues that he was

never violent or threatening toward AM, and since she had not

involved the police prior to that time, it was impossible for

him to know that he was causing her to fear bodily harm.

     Although Gutierrez did not challenge his conviction on the

grounds of an “inconsistent verdict,” the government initially

argues that “[a]n inconsistent verdict, standing alone, is not a

basis for relief,” citing Dunn v. United States, 284 U.S. 390,

391-92 (1932); United States v. Powell, 469 U.S. 57, 64 (1984);

and United States v. Jackson, 7 C.M.A. 67, 71, 21 C.M.R. 193,

197 (1956).   The government goes on to argue that based on all

the evidence adduced at trial, a reasonable factfinder drawing



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United States v. Gutierrez, No. 14-0009/AR

all reasonable inferences in the government’s favor could have

found each element of stalking beyond a reasonable doubt.

     While the government relies on all of the evidence adduced

at trial, including the phone calls and text messages, it places

particular emphasis on three incidents where Gutierrez’s conduct

could be construed as causing fear of bodily harm:   (1) the

August 10, 2010, conduct underlying the rape charge; (2) the

incident in August or September 2010, where Gutierrez arrived at

AM’s apartment in the early morning hours; and (3) Gutierrez’s

October 2, 2010, visit to AM’s apartment.    The government argues

that this evidence, taken as a whole, demonstrates that a

reasonable factfinder could have found beyond a reasonable doubt

that Gutierrez’s conduct was repeated and impliedly threatening,

caused AM reasonable fear, and that Gutierrez did know or should

have known that his conduct would place AM in reasonable fear.

                           Discussion

     “This Court reviews questions of legal sufficiency de novo.

The test for legal sufficiency is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.”    United States v.

Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013) (citations and

internal quotations omitted).   In performing our legal review we

are not limited to appellant’s narrow view of the record.



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United States v. Gutierrez, No. 14-0009/AR

United States v. Cauley, 45 M.J. 353, 356 (C.A.A.F. 1996)

(citing United States v. McGinty, 38 M.J. 131, 132 (C.M.A.

1993)).   Further, “the appellate question is not whether the

evidence is better read one way or the other, but whether under

Jackson [v. Virginia, 443 U.S. 307, 319 (1979)], a reasonable

factfinder reading the evidence one way could have found all the

elements of the offense beyond a reasonable doubt.”   United

States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011).

     The elements of the offense of stalking under Article 120a,

UCMJ, are:

      (1) That the accused wrongfully engaged in a course
     of conduct directed at a specific person that would
     cause a reasonable person to fear death or bodily harm
     [including sexual assault]3 to himself or herself or a
     member of his or her immediate family;

      (2) That the accused had knowledge, or should have
     had knowledge, that the specific person would be
     placed in reasonable fear of death or bodily harm to
     himself or herself or a member of his or her immediate
     family; and

      (3) That the accused’s acts induced reasonable fear
     in the specific person of death or bodily harm to
     himself or herself or to a member of his or her
     immediate family.

MCM pt. IV, § 45a.b. (2012) (MCM).

     Article 120a, UCMJ, defines a “course of conduct” as “a

repeated maintenance of visual or physical proximity to a

3
  The statutory language of Article 120a, UCMJ, includes the
phrase “including sexual assault” but that phrase in not found
in the elements of stalking as set forth in the Manual for
Courts-Martial, United States. As the phrase is included in the
statute, we will consider it as part of the statutory elements.

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United States v. Gutierrez, No. 14-0009/AR

specific person”; or “a repeated conveyance of verbal threat[s],

written threats, or threats implied by conduct or a combination

of such threats, directed at or towards a specific person.”

Article 120a(b)(1)(A)-(B), UCMJ, 10 U.S.C. § 920a(b)(1)(A)-(B).

The term “repeated” is defined as “two or more occasions of such

conduct.”   Id. at 10 U.S.C. § 920a(b)(2).

The August 10, 2010, Incident:

     Although Gutierrez was acquitted of the rape specification,

the government is correct in noting that the panel could

independently consider the evidence supporting that incident

while deliberating on the stalking charge.   See Powell, 469 U.S.

at 59-60;4 Jackson, 7 C.M.A. at 71, 21 C.M.R. at 197.   Without

question the evidence before the panel as to the incident on

August 10, 2010, could have been found by the members to

establish that Gutierrez engaged in conduct directed at AM that

would cause a reasonable person to fear death or bodily harm,

4
  “[A] criminal defendant already is afforded protection against
jury irrationality or error by the independent review of the
sufficiency of the evidence undertaken by the trial and
appellate courts. This review should not be confused with the
problems caused by inconsistent verdicts. Sufficiency-of-the
evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational
determination of guilty beyond a reasonable doubt. This review
should be independent of the jury’s determination that evidence
on another count was insufficient. The Government must convince
the jury with its proof, and must also satisfy the courts that
given this proof the jury could rationally have reached a
verdict of guilty beyond a reasonable doubt. We do not believe
that further safeguards against jury irrationality are
necessary.” Powell, 469 U.S. at 67 (citations omitted).



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United States v. Gutierrez, No. 14-0009/AR

including sexual assault.   The evidence was also sufficient to

establish that Gutierrez either knew or should have known that

such conduct would place AM in reasonable fear of bodily harm or

sexual assault and the panel could also have concluded that

Gutierrez’s conduct induced reasonable fear in AM.

The August/September Incident:

     In August or September 2010, Gutierrez arrived uninvited at

AM’s apartment building around 2:00 a.m. and started to ring her

doorbell while calling her phone and sending her text messages.

AM refused to let him in.   The commotion awakened her nine-year-

old daughter and AM pleaded to be left alone, ultimately

threatening to call the police or his wife if he did not leave.

Despite AM’s demands, Gutierrez continuously rang the doorbell

for an hour.   In light of the initial August 10 incident, the

panel could have concluded from this evidence that Gutierrez’s

conduct would cause a reasonable person to fear bodily harm.

AM’s threats that she would call the police while the incident

was occurring provided sufficient evidence for the panel to

conclude that AM feared bodily harm and also that Gutierrez

either knew or should have known that his conduct would place AM

in reasonable fear.




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United States v. Gutierrez, No. 14-0009/AR

The October 2, 2010, Incident:

     Around 2:00 a.m. on October 2, 2010, Gutierrez began

calling and text messaging AM.   He then arrived uninvited at her

apartment building, rang her doorbell and continued to call and

text message her.   After gaining unauthorized access to AM’s

apartment building, Gutierrez began kicking AM’s door.    When the

military police arrived and detained Gutierrez he continued his

assertive behavior by lunging toward AM, demanding that she let

him in, blowing kisses, licking his lips and making sexual

gestures toward her.   AM testified that Gutierrez’s behavior

caused her to fear for her daughter and for herself.   Gutierrez

concedes that this incident constituted an occasion of stalking

conduct under Article 120a.

The Phone Calls and Messages:

     Aside from the three discrete stalking incidents discussed

above, the record reflects that from August to October 2010,

Gutierrez repeatedly attempted to contact AM by telephone, text

messages and Facebook.   AM made numerous demands that Gutierrez

cease contacting her and even blocked Gutierrez from her

Facebook page.   Gutierrez, however, remained undeterred and

attempted to contact AM during the months of August and

September.   Although the contents of these messages were not

overtly threatening when viewed in isolation, they were evidence

of repeated unwelcome conduct.   When viewed in the context of



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United States v. Gutierrez, No. 14-0009/AR

Gutierrez’s earlier conduct, they constitute “a repeated

conveyance of . . . threats implied by conduct” as envisioned by

Article 120a(a)(b)(1)(B), which created a link among the three

discrete incidents of stalking conduct.   The panel could have

independently considered these phone calls and messages when

determining whether a course of stalking conduct existed.

                           Conclusion

     The offense of stalking contemplates consideration of

evidence which covers the entire course of alleged unlawful

conduct directed toward the victim.    This record contains

evidence of repeated occasions of discrete stalking conduct, as

well as a pattern of repeated telephone calls and text messages

from which the jury could infer both objective and subjective

awareness of fear of bodily harm or sexual assault.   Viewing the

evidence in the light most favorable to the government, a

rational trier of fact could have found beyond a reasonable

doubt that Gutierrez’s conduct constituted stalking as defined

by Article 120a, UCMJ.

                            Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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