UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Master Sergeant RICARDO L. GRACIA
United States Army, Appellant

ARMY 20170171

Headquarters, 8th Theater Sustainment Command
Mark Bridges and James Arguelles, Military Judges
Lieutenant Colonel Ryan B. Dowdy, Staff Judge Advocate

For Appellant: Captain Benjamin A. Accinelli, JA; Margaret V. Kurz, Esquire;
Joseph M. Owens, Esquire (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Marc B. Sawyer, JA; Lieutenant Colonel Karen J. Borgerding, JA (on
brief).

18 November 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Judge:

Appellant was a Master Sergeant (MSG) when he engaged in various sexual
activities with his then fifteen-year-old biological daughter, SG.' Appellant now
raises five assignments of error, three of which we will discuss, none of which merit

 

' An enlisted panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of three specifications of rape of a child, four specifications of sexual
abuse of a child, and one specification of incest as a violation of Hawaii state law
under the Assimilative Crimes Act, in violation of Articles 120b and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920b and 934 [UCMJ]. The panel sentenced
appellant to a dishonorable discharge and confinement for twenty years. The
convening authority approved the sentence as adjudged and waived automatic
forfeitures of all pay and allowances for a period of six months and ordered them
paid to appellant’s spouse.
GRACIA—ARMY 20170171

relief.* We will address appellant’s following assigned errors: (1) whether appellant
invoked his Fifth Amendment right to silence to law enforcement during his
interview and whether the military judge erred in denying appellant’s suppression
motion; (2) whether appellant’s due process rights were violated when the
government failed to provide the defense with paralegal notes from a pretrial
interview with the victim; and (3) whether the evidence is legally and factually
insufficient to sustain convictions for rape by force.

Additionally, we will discuss Specifications 1 and 6 of Charge II; in that after
conducting our review of the record, some of the charged language in those
specifications is not supported by the evidence.? Accordingly, we will except that
language from those specifications in our decretal paragraph.

BACKGROUND

Appellant and his fifteen-year-old daughter, SG, were always affectionate
toward each other. They cuddled, kissed each other on the mouth, and walked
holding hands. On the night of 17 June 2016, appellant’s wife and older daughter
retreated upstairs; meanwhile, appellant drank half a bottle of rum and SG consumed
half a beer and tasted rum while sitting on the porch. As they talked, SG was sitting
on appellant’s lap and their conversation became sexual in nature.

As they moved inside the house, appellant and SG laid on the couch together.
Appellant began to rub SG’s thigh, inner thigh, and then her groin area through her
clothing. At some point, SG changed into pajamas. SG testified that she was scared
and did not want to say anything that would get her in trouble. Appellant then
proceeded to unzip SG’s pajamas and began rubbing her clitoris and digitally
penetrated her vagina. After partially removing SG’s pajamas, appellant performed
oral sex on her, penetrating her vagina with his tongue. Appellant also had SG
perform oral sex on him. Finally, appellant attempted to insert his penis into SG’s
vagina, and then inserted his penis in her anus. At some point during this encounter,
appellant had them position their bodies so they could perform oral sex on each

 

? We have given full and fair consideration to matters raised personally by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and determine
they warrant neither discussion nor relief.

3 We note that The Specification of Charge I, and Specifications 2 and 5 of Charge II
were dismissed after arraignment, but prior to pleas. The promulgating order does
not reflect that appellant was arraigned on these specifications, nor that they were
dismissed. Accordingly, the Clerk of Court has issued a corrected promulgating
order. In this opinion, we will refer to the charges and specifications as appellant
was arraigned on them.
GRACIA—ARMY 20170171

other at the same time. Afterward, appellant and SG made a “pinky promise” not to
tell anyone what had happened.

On Father’s Day, 19 June 2016, appellant raped his daughter, again. While
they were alone in the house, appellant performed oral sex on SG, had her place his
penis in her mouth, and inserted his penis into her vagina.

On 20 June 2016, appellant came home from work for lunch. While home he
and SG laid on the bed where he rubbed her buttocks and her vaginal opening
through her clothing.

On 24 June 2016, appellant brought SG lunch while she was working at her
summer job. As they sat in the car, appellant inserted his fingers into SG’s vagina.
Later that evening while in the garage, appellant again inserted his fingers into SG’s
vagina before pulling down his shorts and telling her to perform oral sex on him.
Before SG went to bed that night, appellant kissed her “inappropriately” by putting
his tongue in her mouth and groping her breasts. SG woke up in the middle of the
night after having a nightmare. When appellant came to her room to help her, she
demanded that he get out of her room. Her mother then entered the room and SG
told her that appellant had been molesting her.

The next morning, appellant was confronted by SG and his wife about the
allegations. Appellant admitted he had in fact engaged in sexual activities with SG.
The Army Criminal Investigation Command (CID) investigated these allegations.
Appellant told CID that he admitted to the allegations to his wife because that is
what his wife wanted to hear and SG was so convinced that that he had in fact done
these things.

During appellant’s CID interview, appellant ultimately admitted that the
events SG described on 17 June 2016 did occur; however, he maintained that SG was
the instigator, and he was so intoxicated that he was unable to rebuff SG’s advances.
Though appellant denies anything else sexually occurred between him and SG, he
confirmed that he was in fact alone with SG at the specific times and places the
other sexual assaults occurred.

LAW AND DISCUSSION
A. Whether Appellant Invoked his Fifth Amendment Right

Pretrial, the defense submitted a motion to suppress appellant’s statement to
CID on the basis that the CID agent continued to question appellant despite him
saying, “Stop.” Appellant argues this was an unambiguous invocation of his Fifth
Amendment right to remain silent and the military judge erred in denying the
defense motion to suppress his CID statement. We disagree.
GRACIA—ARMY 20170171

We review a military judge’s ruling on a motion to suppress for an abuse of
discretion, “viewing the evidence in the light most favorable to the prevailing
party.” United States v. Eugene, 78 M.J. 132, 134 (C.A.A.F. 2018) (citing United
States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)). “In reviewing a military
judge’s ruling on a motion to suppress, we review factfinding under the clearly
erroneous standard and conclusions of law under the de novo standard.” United
States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (quoting United States v. Ayala,
43 M.J. 296, 298 (C.A.A.F. 1995)).

“While no particular words or actions are required to exercise one’s Fifth
Amendment right to silence . . . its invocation must be unequivocal before all
questioning must stop.” United States v. Sager, 36 M.J. 137, 145 (C.M.A. 1992).
To assess whether an appellant’s invocation of rights is unambiguous, we must
determine whether the invocation was “sufficiently clear that a reasonable [law
enforcement official] in the circumstances would understand the statement” to be an
assertion of the right to remain silent. United States v. Delarosa, 67 M.J. 318, 324
(C.A.A.F. 2009) (quoting Davis v. United States, 512 U.S. 452, 459 (1994)).

After reviewing appellant’s CID videotaped interview, we agree with the
military judge’s finding that appellant did not unambiguously invoke his Fifth
Amendment right to remain silent. The moment appellant claims he invoked his
right to remain silent occurs approximately two and a half hours into the interview.
By this point, appellant had already made some admissions and was emotional. The
CID agent told appellant he was “not a bad dad.” Appellant cried when he heard
that, covered his face, and mumbled through the sobs a faint sounding “Stop.” In
this context, appellant saying “Stop,” is him asking for a moment to collect his
emotions. There was an approximate thirteen second pause, and then the CID agent
asked appellant to tell him what happened. Appellant proceeded to admit to raping
his daughter.

Based upon our review of appellant’s CID interview, we hold the military
judge did not abuse his discretion in denying the defense motion to suppress. As the
military judge stated in his ruling, appellant’s statement is “an ambiguous statement
at best.” Accordingly, the CID agent had no obligation to stop questioning
appellant. See Davis, 512 U.S. at 461-62.

B. Whether Appellant’s Due Process Rights Were Violated Due to Non-
Disclosure of Government Paralegal Notes

After trial, appellant was served with the record of trial, which included
paralegal notes from a pretrial government interview with SG. These notes were not
previously provided to the defense. The defense requested, and the convening
authority granted, a post-trial Article 39(a) session regarding whether the failure to
disclose these notes to the defense violated R.C.M. 701 and Brady v. Maryland, 373
GRACIA—ARMY 20170171

U.S. 83 (1963). The paralegal notes contain five statements at issue: (1) “when we
moved here something evil [was] in the house and Dad let it get to him;” (2) “in
New York we had a[n] old Soldier in our house;” (3) “[In] Texas there was a ghost
trying to kill me;” (4) “Here in Hawaii there’s something evil trying to tear us
apart;” and (5) “Something changed in Dad between Drum and here.”

At the post-trial Article 39(a) session, the defense moved for a mistrial under
R.C.M. 915 and 1102(b) based on the failure of the government to provide the above
statements pretrial. Appellant contended at the post-trial Article 39(a) session, and
continues to argue on appeal, that the failure to disclose these notes materially
prejudiced his defense because the statements at issue would have undermined SG’s
credibility at trial and would have provided additional evidence to support the
defense’s Military Rule of Evidence [Mil. R. Evid.] 513 motion for disclosure of
SG’s mental health records. The military judge ruled that he was “convinced beyond
a reasonable doubt that even if the statements at issue were disclosed and/or
admitted into evidence at trial, the panel would still have returned all of the same
guilty verdicts.”

We review a military judge’s decision to deny a request for a mistrial for
abuse of discretion. United States v. Harris, 51 M.J. 191, 196 (C.A.A.F. 1999)
(citing United States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990); United States v.
Jeanbaptiste, 5 M.J. 374, 376 (C.M.A. 1978)). “Declaring a mistrial is a drastic
remedy which should be used only when necessary to prevent a miscarriage of
justice.” Id.

1. Brady

The government violates an accused’s due process rights if it withholds
evidence that is favorable to the defense and material to the accused’s guilt or
punishment. United States v. Behenna, 71 M.J. 228, 237-38 (C.A.A.F. 2012).
Evidence is material if “there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Jd. at 238 (citing
Smith v. Cain, 565 U.S. 73, 75 (2012)). “[T]he evidence must have made the
likelihood of a different result great enough to undermine confidence in the outcome
of the trial.” Jd.

Without deciding whether the statements at issue amount to Brady evidence,
we determine that had the statements at issue been disclosed, there is not a
reasonable probability that the result of appellant’s trial would have been different.
See, e.g., United States v. Jones, 49 M.J. 85, 89-90 (C.A.A.F. 1998) (limiting the
cross-examination of a victim was harmless beyond a reasonable doubt where the
government’s case was strong, and the defense was allowed to introduce other
evidence concerning the victim’s ability to perceive). At trial, defense elicited
extensive testimony regarding SG’s false memories, lack of credibility, and other
GRACIA—ARMY 20170171

emotional and psychological issues. Additional cross-examination of SG regarding
the statements at issue would have been cumulative. See Behenna, 71 M.J. at 238
(“The overlapping nature of the evidence undercuts an argument that failure to
disclose pursuant to Brady was prejudicial.”). Accordingly, we find the paralegal
notes were not material, and their non-disclosure does not undermine the confidence
in appellant’s convictions.

2. Rule for Courts-Martial 701

Rule for Courts-Martial 701(a)(2) requires the government, upon defense
request, to produce documents “which are material to the preparation of the
defense.” United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004). Regardless of
a defense request, R.C.M. 701(a)(6) requires the Government to disclose evidence
that “reasonably tends” to negate the guilt of an offense charged. Jd. Under R.C.M.
701, information “material to the preparation of the defense” includes information
that could be used at trial to impeach a witness. United States v. Roberts, 59 M.J.
323, 326-27 (C.A.A.F. 2004).

The Court of Appeals for the Armed Forces (CAAF) has adopted two
appellate tests for determining materiality with respect to the erroneous
nondisclosure of discoverable evidence under R.C.M. 701. See United States v.
Hart, 29 M.J. 407, 410 (C.M.A. 1990). In cases where the defense did not make a
discovery request or only made a general request for discovery, an appellant is
entitled to relief only by showing there is a “reasonable probability” of a different
result at trial if the evidence had been disclosed. Jd. “Where an appellant
demonstrates that the Government failed to disclose discoverable evidence in
response to a specific request .. . the appellant will be entitled to relief unless the
Government can show that nondisclosure was harmless beyond a reasonable doubt.”
Id.

In appellant’s case, the defense submitted a specific discovery request which
asked for “the content of any interviews conducted by the detailed trial counsel,
particularly if these interviews resulted in disclosure of statements not previously
provided to the Defense,” and “any information of any prior and/or subsequent
propensity on the part of any witness and/or alleged victim to lie or state
falsehoods.” Since the defense specifically requested the statements at issue, we
require the government to show harmlessness beyond a reasonable doubt. For the
same reasons we find appellant was not prejudiced by the government’s
nondisclosure of the statements at issue under Brady, we determine that the
GRACIA—ARMY 20170171

nondisclosure under R.C.M. 701 (a)(2) was harmless beyond a reasonable doubt.
See Roberts, 59 M.J. at 327.4

3. Mil. R. Evid, 513

Appellant further claims the statements at issue might have convinced the
military judge to grant the defense motion for an in-camera review of SG’s mental
health records. The military judge ruled that he still would have denied the defense
motion. Specifically, the military judge ruled, “consideration of the statements at
issue does not in any way change the conclusion that the defense failed to meet its
obligation under [Mil. R. Evid. 513(e)(3)] to establish that its request fell within one
of the exceptions enumerated in [Mil. R. Evid.] 513(d).” We similarly fail to see
how the statements at issue establish that SG’s mental health records are not
privileged under Mil. R Evid. 513(d) or that appellant met one of the exceptions
under Mil. R. Evid. 513(e)(3) for an in-camera review. Without deciding whether
the military judge abused his discretion in denying the defense request for an in-
camera review under Mil. R. Evid. 513, we are convinced beyond a reasonable doubt
that had the statements at issue been disclosed, the result of the proceeding would
not have been different. See Roberts, 59 M.J. at 327.

C. Legal and Factual Sufficiency to Sustain Convictions for Rape by Force

Appellant asserts the evidence is legally and factually insufficient to sustain
convictions for rape by force in Specifications 1, 3, and 9 of Charge II. We
disagree.

Article 66, UCMJ, establishes our statutory duty to review a record of trial for
legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). We may affirm only those findings of guilt that we find correct in
law and fact and determine, based on the entire record, should be approved. Id.

In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To affirm a
conviction, “after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we must be]
convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). “The test for legal sufficiency is whether,

 

* Finding no prejudice, we need not decide whether the military judge abused his
discretion in denying the defense’s request for a mistrial under R.C.M. 701(a)(2).
We also considered whether appellant was prejudiced under R.C.M. 701(a)(6). We
determined he was not.
GRACIA—ARMY 20170171

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. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)

(citation omitted).

In each of the specifications of rape (Specifications 1, 3, and 9 of Charge II),
appellant is convicted of a penetrative sexual act with SG, a child who had not
attained the age of sixteen years, by force; “to wit: abusing his parental authority.”
Under the definitions section of Article 120b, UCMJ, there is a specific reference to
force in the context of a parent-child relationship. “In the case of a parent-child or
similar relationship, the use or abuse of parental or similar authority is sufficient to
constitute the use of force.” UCMJ art. 120b(h)(2).

The record establishes that appellant, by his own admission, engaged in
sexual acts with his biological daughter when she was fifteen years old. SG testified
in detail about each sexual act. When SG testified about the first time appellant
raped her, she stated “I didn’t know what to think. I was scared and I didn’t want to
say anything that would get me in trouble. I don’t know why I thought I would get
in trouble, but I just - - yeah.” Appellant also exerted parental moral pressure on SG
when he made her “pinky promise” not to tell anyone what had happened. This
“pinky promise” loomed over all future sexual contact between appellant and SG.
This abuse of parental authority is precisely the type of psychological force that the
plain language of the statute states “is sufficient to constitute the use of force.” Jd.
(emphasis added). Based on this evidence, we are convinced beyond a reasonable
doubt that appellant’s parental relationship with SG is sufficient to constitute the use
of force under Article 120b, UCMJ.

D. Factual Insufficiency in Specifications 1 and 6 of Charge II

Although not raised by appellant, under Article 66, UCMJ, we notice certain
language contained in Specifications 1 and 6 of Charge II as not supported by the
evidence.

Regarding Specification 1 of Charge IJ, appellant is convicted of committing
sexual acts upon SG, on 17 June 2016, by penetrating her vulva with his tongue,
fingers, and penis; penetrating her anus with his penis; and penetrating her mouth
with his penis. SG was very clear in her description about events occurring on 17
June 2016. She testified, “[Appellant] began rubbing my clitoris and putting his
fingers in my vagina.” Next, SG stated “[Appellant pulled down my onesie the rest

 

> Under the specific circumstances of this case, we find appellant having sex with his
biological, fifteen-year-old daughter, a per se abuse of parental authority
constituting force under Article 120b(h)(2).
GRACIA—ARMY 20170171

of the way and it came off completely . . . [a]nd he began to perform oral sex on
me.” SG continued to testify that “[Appellant] had me perform oral sex on him.”
SG testified that “[Appellant] attempted to insert his penis in my vagina and when
that didn’t work he inserted it into my anus.”

In appellant’s CID interview, he acknowledges that he was “inside of SG,” but
does not offer any further details other than he used his tongue on her “coochie” for
“oral sex;” and she was on top of him and she performed “oral sex on him.” No
further testimony was presented about SG’s vulva being penetrated by appellant’s
penis. Therefore, we are unable to conclude beyond a reasonable doubt that
appellant did in fact penetrate SG’s vulva with his penis on 17 June 2016.

In regards to Specification 6 of Charge I, appellant is convicted of having
committed a lewd act upon SG, on 20 June 2016, by touching her buttocks with his
hand; touching her genitals with his hand; and exposing his penis. SG testified that
appellant was home from work and was wearing his ACU’s. As she lay next to him,
“[Appellant] started to rub my butt and my vaginal opening through my dress and
underwear,” and then “he got up as he stood at the edge of the bed and gestured to
his groin area, I guess because he has an erection.” The record is void of evidence
that appellant exposed his penis on 20 June 2016.

The record leaves us with a fair and rational hypothesis other than guilt for
appellant penetrating SG’s vulva with his penis on 17 June 2016 and exposing his
penis on 20 June 2016. United States v. Billings, 58 M.J. 861, 869 (Army Ct. Crim.
App. 2003); see also Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook, para. 8-3-11 (10 Sep. 2014). We may only affirm convictions that we
are ourselves convinced have been proven beyond a reasonable doubt. We are not so
convinced in this case.

CONCLUSION

We affirm only so much of the finding of guilty of Specification 1 of Charge
II as finds that:

[Appellant], did, on the island of Oahu, Hawaii, on or
about 17 June 2016, commit sexual acts upon SG, a child
who had not attained the age of 16 years, to wit:
penetrating her vulva with his tongue and fingers;
penetrating her anus with his penis; and penetrating her
mouth with his penis; by using force against her; to wit:
abusing his parental authority.

We affirm only so much of the finding of guilty of Specification 6 of Charge
II as finds that:
GRACIA—ARMY 20170171

[Appellant], did, on the island of Oahu, Hawaii, on or
about 20 June 2016, commit lewd acts upon SG, a child
who had not attained the age of 16 years, to wit: touching
her buttocks with his hand and touching her genitals with
his hand.

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principals of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), this court AFFIRMS the sentence. All rights, privileges, and
property of which appellant has been deprived by virtue of that portion of his

findings being set aside by this decision are ordered restored. See UCMJ art. 58b(c)
and 75(a).

Judge RODRIGUEZ and Judge FLEMING concur.

FOR THE COURT:

Holek H. SQUIRES;JR

Clerk of Court

10
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Master Sergeant RICARDO L. GRACIA
United States Army, Appellant

ARMY 20170171

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 4, HEADQUARTERS,
8TH THEATER SUSTAINMENT COMMAND, FORT SHAFTER, HAWAII 96858,
dated 30 April 2018,

IS CORRECTED AS FOLLOWS:

BY adding the following after the jurisdictional
paragraph:

“Charge I. Article 92. Plea: None. Finding: Dismissed.

The Specification: In that Master Sergeant Ricardo L.
Gracia, U.S. Army, having knowledge of a lawful order
issued by Major General Raymond Mason, to wit:
paragraph 4p(2), Policy Memorandum Installation-1,
Discipline, Law, and Order, dated 15 July 2009, an order
which it was his duty to obey, did, on the island of Oahu,
Hawaii, on or about 17 June 2016, fail to obey the same by
providing alcohol to his 15-year-old daughter, SG. Plea:
None. Finding: Dismissed after arraignment but prior to
pleas.”

BY reflecting Charge I. Article 120b as Charge II. Article
120b.

BY adding the following Specification, after Specification
1, renumbered Charge II:
GRACIA—ARMY 20170171

“Specification 2: In that Master Sergeant Ricardo L.
Gracia, U.S. Army, did, on the island of Oahu, Hawaii, on
or about 17 June 2016, commit a lewd act upon SG, a
child who had not attained the age of 16 years, to wit,
touching her genitals with his hand. Plea: None. Finding:
Dismissed after arraignment but prior to pleas.”

BY reflecting Specification 2, renumbered Charge II as
Specification 3.

BY reflecting Specification 3, renumbered Charge II as
Specification 4.

BY adding the following Specification after renumbered
Specification 4, renumbered Charge II:

“Specification 5: In that Master Sergeant Ricardo L.
Gracia, U.S. Army, did, on the island of Oahu, Hawaii, on
or about 19 June 2016, commit a lewd act upon SG, a
child who had not attained the age of 16 years, to wit:
stating ‘do you want a taste’ or words to that effect. Plea:
None. Finding: Dismissed after arraignment but prior to
pleas.”

BY reflecting Specification 4, renumbered Charge II as
Specification 6.

BY reflecting Specification 5, renumbered Charge II as
Specification 7.

BY reflecting Specification 6, renumbered Charge II as
Specification 8.

BY reflecting Specification 7, renumbered Charge II as
Specification 9.

BY reflecting Specification 8, renumbered Charge II as
Specification 10.

BY reflecting Specification 9, renumbered Charge II as
Specification 11.

BY reflecting Charge II. Article 134 as Charge III. Article
134.
GRACIA—ARMY 20170171
DATE: 18 November 2019

FOR THE COURT:

  

M*LCOLM H.ASQUIR
Clerk of Court
