UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and BURTON
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Captain WILLIAM K. SMITH
United States Army, Appellant

ARMY 20180286

Headquarters, United States Army Alaska
Lanny J. Acosta, Jr., Military Judge
Colonel Roseanne M. Bennett, Staff Judge Advocate

For Appellant: Major Joseph C. Borland, JA; Michael J. Millios, Esquire (on brief
and reply brief).

For Appellee: Lieutenant Colonel Wayne H. Williams, JA; Major Hannah E.
Kaufman, JA; Captain Anthony A. Contrada, JA (on brief).

28 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

Contrary to his pleas, a panel of officers sitting as a general court-martial
convicted appellant of three specifications of sexual assault! in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 [UCMJ]. The convening
authority approved the adjudged sentence of a dismissal, confinement for three
years, and forfeiture of all pay and allowances, and credited appellant with one day
against his sentence to confinement.

 

1 Ag discussed in detail below, after findings, the military judge found, in part based
on the government’s concession, that the three specifications of sexual assault were
charged in the alternative. In turn, the military judge conditionally dismissed
Specifications 2 and 4 of the Charge, subject to Specification 3 of the Charge
surviving appellate review.
SMITH—ARMY 20180286

This case is now before us for review pursuant to Article 66, UCMJ.
Appellant raises four assignments of error. While we briefly discuss each below,
none warrant relief.”

BACKGROUND

Appellant was initially charged with one specification of conduct unbecoming
an officer and gentleman in violation of Article 133, UCMJ, and four specifications
of sexual assault in violation of Article 120, UCMJ. The sexual assault allegations
all involved the same victim, at the same time, and in same location. The
government conceded that the sexual assault specifications were charged in the
alternative, with each specification expressing a different theory of liability. The
first specification alleged sexual assault by administering a drug or intoxicant; the
second alleged sexual assault when appellant knew or should have known the victim
was asleep or unconscious; the third alleged the victim was incapable of consenting
due to impairment by a drug or other intoxicant; and the fourth alleged sexual
assault by causing bodily harm, with the bodily harm being the penetrative act.
Before trial, the government dismissed the conduct unbecoming charge and the
specification alleging sexual assault by administering a drug or intoxicant.

The evidence and testimony at trial showed that appellant was a married
transportation officer stationed at Fort Wainwright, Alaska. In early 2016, appellant
traveled, in his personal capacity, to Honolulu, Hawaii, to investigate the possibility
of buying a Merry Maids cleaning service franchise located in that city. Ms. AT was
a twenty-one-year-old employee of Merry Maids in Honolulu. Ms. AT had only
recently joined the company after moving from Wisconsin. Ms. AT lived in one of
two bedrooms located in the back-half of the Merry Maids office. Another
employee, Ms. Cathy Brown, lived in the other bedroom.

On 15 February 2016, appellant, Ms. AT, and Mr. Scott Williams, the
manager of the Merry Maids, all went out to dinner. Ms. AT testified that she
remembered having one alcoholic drink at dinner. After dinner, they returned to the
Merry Maids office and Mr. Williams eventually departed. Appellant and Ms. AT
then went to another bar to discuss the future of the company. Ms. AT remembered
having two more drinks at the bar. She also remembered appellant being with her in
a bar bathroom while she was throwing up. Ms. AT’s next memory was waking up
briefly with appellant on top of her, before passing out again. She testified that she
awoke sometime later, naked, with appellant in her room at the Merry Maids office.
Ms. AT asked appellant, “what time is it,” and then asked him to leave. Ms. AT

 

2 We have given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they are without merit.
SMITH—ARMY 20180286

testified that she did not remember any details, including being penetrated by
appellant, but she did believe she had been raped. She also testified that she had
what she believed to be semen dripping from her vagina.

Immediately after appellant’s departure, Ms. AT knocked on Ms. Brown’s
door and told her she believed she had been raped. Ms. Brown testified that prior to
falling asleep, she heard, but did not see, appellant and Ms AT enter the Merry
Maids office at 2200 hours. She believed that they left again and she testified that
she did not hear or see anything further until Ms. AT woke her in the early morning
hours to report being raped. Ms. Brown believed she was awoken at around 0400
hours. Ms. Brown testified that she called Mr. Williams to seek assistance. At some
point, Ms. AT was able to call her mother in Wisconsin and tell her mother that she
believed she had been raped. Her mother also encouraged her to report the incident
and go to the hospital.

For his part, Mr. Williams testified that Ms. Brown called him at 0200 hours.
He indicated he also spoke with Ms. AT at some point. He then traveled to the
Merry Maids office to assist. When he arrived, Mr. Williams testified that Ms AT
was visibly upset and wanted to go the hospital. Mr. Williams took her to one
hospital which could not perform a sexual assault examination, therefore, they drove
to another hospital.

At the hospital, Ms. AT was taken for a sexual assault examination based
upon her report. Dr. Wayne Lee conducted the examination of Ms. AT. He testified
that as part of the examination, he took a sample of fluid he found in Ms. AT’s
vagina. Dr. Lee immediately examined the fluid using a microscope. Based on his
training and experience, Dr. Lee testified that the sample contained semen. The
sample was packaged and sent off for further forensic testing along with other
evidence collected. The results from that testing were not admitted at trial because
the government could not establish the chain of custody.

Ms. AT also provided a urine sample as part of the examination, but declined
to provide a blood sample. Her urine sample was also sent for testing by the
Honolulu police department, however, the sample was not properly sealed and was
therefore discarded by the lab without any testing. The Honolulu police
investigators also went to the Merry Maids office to take photographs and look for
any possible evidence. However, no DNA evidence was found and no physical
evidence of any kind was admitted at trial by the government.

The case was ultimately turned over to the Army Criminal Investigation
Command (CID) for further investigation. As part of their activity on the case, CID
investigators obtained a receipt for the credit card purchases made by appellant
while he was at the bar with Ms. AT. The receipt, which was admitted by appellant,
indicated he purchased eight drinks at the bar between approximately 1952 hours and
SMITH—ARMY 20180286

2122 hours. An employee from the bar was called to testify as to their billing
process and to the typical strength of the drinks identified on the receipt. The
evidence presented indicated that appellant and Ms. AT closed out their tab at the
bar shortly before 2200 hours.

The government also called Mr. Kurt McDonald, the owner of the Merry
Maids franchise in Hawaii, as well as one in Anchorage. Alaska. Mr. McDonald
testified that he lived in Alaska and that he rented part of his home to appellant and
appellant’s wife. According to Mr. McDonald, he became friends with appellant and
learned that appellant was interested in owning a business. Mr. McDonald tried to
sell the Merry Maids franchise in Hawaii to appellant, although appellant ultimately
bought the franchise in Alaska instead.

Mr. McDonald testified that a few weeks after appellant returned from
Hawaii, they discussed the alleged sexual assault. Appellant told Mr. McDonald that
he and Ms. AT drank at more than one bar after dinner. Appellant also told Mr.
McDonald that Ms. AT became sick and vomited sometime during the evening.
Appellant told Mr. McDonald that he took Ms. AT back to Merry Maids, helped her
shower and then put her in bed. According to appellant, Ms. AT had trouble
walking, was “like Jell-O,” and she had to be helped to bed. Appellant told Mr.
McDonald that Ms. AT asked, “Are you going to fuck me now,” at which point
appellant admitted to Mr. McDonald that he had vaginal and anal sex with Ms. AT.
He told Mr. McDonald that he ejaculated in Ms. AT’s anus and wiped himself on her
sheets before he left. Appellant also told Mr. McDonald that Ms. AT was “out of
it.” Mr. McDonald testified he took appellant’s statements to mean they were both
really drunk. During his testimony, Mr. McDonald interjected that he believed what
appellant described was consensual sex, however, the military judge sustained a
government objection.

Appellant’s military defense counsel conducted an extensive cross-
examination of Mr. McDonald. That questioning revealed inconsistencies internal to
Mr. McDonald’s testimony and with other facts in the case. Defense counsel further
suggested that Mr. McDonald added key details to appellant’s admission between the
time he spoke with law enforcement and when he later spoke with prosecutors. On
cross-examination, Mr. McDonald admitted that he had lied to Alaska State Troopers
in an unrelated matter. He also admitted that appellant had not been making
payments for the purchase of the Alaska Merry Maids franchise, and acknowledged
that he had debts and liens from unrelated business matters.

Next, defense counsel demonstrated that Mr. McDonald had sought assistance
from government counsel in collecting the debt from appellant. Defense counsel
also questioned Mr. McDonald on a phone message he left for civilian defense
counsel, which stated that he was “meeting with the opposition telephonically,
tomorrow” and that he “would love to hear from [appellant] before then, please.”
SMITH—ARMY 20180286

Defense counsel used the phone message to suggest that Mr. McDonald was willing
to shape his testimony. Defense counsel also demonstrated that after the interview,
Mr. McDonald again left a message with civilian defense counsel which indicated
that he was completely honest with “the opposition” and that it may not have been
“flattering” to appellant, but “the bottom line was the sex was consensual.” He also
asked defense counsel to have appellant start sending him the money owed for the
franchise. This evidence was used to suggest that Mr. McDonald’s testimony had
been influenced by the debt.

Appellant also called several witnesses during the defense case. Dr.
Shimimora, a forensic toxicologist, testified that Ms. AT’s urine sample might still
have been tested despite having been improperly sealed. He also testified that had
the urine been tested, it would have likely indicated if any drugs or alcohol were in
Ms. AT’s system around the time she was sexually assaulted.

Dr. Keppler, a forensic psychiatrist, testified about the effects of alcohol on
memory and on a person’s actions. He described how alcohol can put a person ina
blackout state wherein they cannot form memories, but where they can still make
reasoned decisions, such as consenting to sex, and where they might interact in a
manner that would appear sober and capable of consenting. Dr. Keppler opined that
based on the evidence at trial, Ms. AT was likely in such a blackout state during the
sexual assault.

After hearing all the testimony and considering all of the evidence, the panel
ultimately found appellant guilty of all three specifications of sexual assault. The
military judge then conditionally dismissed Specifications 2 and 4 of the Charge,
subject to Specification 3 of the Charge surviving appellate review.

LAW AND DISCUSSION
Legal and Factual Sufficiency

Appellant’s first assignment of error is that his sexual assault conviction is
legally and factually insufficient. We disagree.

Courts of Criminal Appeals hold findings of guilt legally sufficient when “any
rational fact-finder could have found all essential elements of the offense beyond a
reasonable doubt.” United States v. Nicola, 78 M.J. 223, 226 (C.A.A.F. 2019)
(citations omitted). In conducting our legal sufficiency review, we are obligated to
draw “every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Robinson, 77 M.J. 294, 298 (C.A.A.F. 2018)
(citations omitted). “As such, the standard for legal sufficiency involves a very low
threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (citation and internal marks omitted).
SMITH—ARMY 20180286

With regard to 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). We may not
affirm a conviction unless, “after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” we are
personally convinced beyond a reasonable doubt of appellant’s guilt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). The degree of deference we afford the
trial court for having seen and heard the witnesses will typically reflect the
materiality of witness credibility to the case. United States v. Davis, 75 M.J. 537,
546 (Army Ct. Crim. App. 2015).

In this case, the evidence is both legally and factually sufficient to sustain
appellant’s sexual assault conviction. The evidence showed that Ms. AT weighed
approximately one-hundred pounds at the time she was sexually assaulted by
appellant, she had a boyfriend, she was aware appellant was married, and she was
not attracted to appellant. Ms. AT testified to consuming at least three alcoholic
drinks with appellant. Evidence admitted at trial indicated that it was likely more
than the just those three drinks. She testified that she vomited at some point in
appellant’s presence. She further testified that she woke up once with appellant on
top of her before passing out and again waking up naked with appellant in her room.
She testified that she felt as if she had been raped and that she found what was later
confirmed to be semen coming from her vagina. The evidence showed that she
immediately reported what she believed to be a sexual assault to her roommate, and
shortly thereafter went to the hospital for a forensic examination.

Admissions from appellant to Mr. McDonald demonstrated that appellant
drank at more than one bar with Ms. AT, and that he took Ms. AT back to her room
in the Merry Maids office. Appellant further admitted that, at the office, he helped
Ms. AT shower because she had vomited on herself. Appellant then admitted to
helping Ms. AT to bed because she was “like Jell-O” and had trouble walking.
Appellant told Mr. McDonald that he had vaginal and anal intercourse with Ms. AT
and that he ejaculated. Appellant also described Ms. AT as “out of it.”

Defense counsel conducted a lengthy and effective cross-examination of Mr.
McDonald that raised numerous issues that could have impacted his credibility,
however, on the whole, his testimony was consistent with Ms. AT’s testimony as
well as other evidence in the case. Additionally, while appellant offered expert
testimony supporting an alternative scenario wherein Ms. AT may have consented,
or appeared to have consented but suffered memory loss, the evidence supporting
that theory was not conclusive and could have been fairly rejected by the panel.

Accordingly, based on all the facts and evidence, drawing all reasonable
inferences in favor of the prosecution, we find that a rational fact-finder could have
found all of the essential elements of the offense of which appellant was found
SMITH—ARMY 20180286

guilty, beyond a reasonable doubt. Further, exercising our independent duty to
review the facts, making allowances for not having seen or heard the testimony, we
are ourselves convinced of appellant’s guilt beyond a reasonable doubt.

Failure to Test or Preserve Ms. AT’s Urine Sample

Appellant’s second assignment of error is that the military judge erred by not
abating the case when the government destroyed Ms. AT’s urine sample. As
discussed below, we disagree.

We review a military judge’s failure to abate proceedings under an abuse of
discretion standard. United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F.
2015) (citation omitted). Military judges abuse their discretion when their findings
of fact are clearly erroneous, or their decision is influenced by an erroneous view of
the law. Id. (citing United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013).

The parties to a court-martial are generally entitled to equal access to the
evidence. Rule for Courts-Martial [R.C.M.] 703(a). However, the parties are not
entitled to production of evidence which has been lost or destroyed. R.C.M.
703(f)(2). When evidence is lost or destroyed, judges must employ a three-part test
to determine if abatement is appropriate. Simmermacher, 74 M.J. at 201-02; see also
R.C.M. 703(f)(2).

The first prong of the test asks whether the “lost or destroyed evidence [is] of
such central importance that it [is] essential to a fair trial.” Simmermacher, 74 M.J.
at 201-02. The second prong asks whether there is an “adequate substitute” for the
lost or destroyed evidence. Jd. at 202. Finally, the third prong looks to determine
whether the requesting party was at “fault” for the loss or destruction of the
evidence, or whether the loss “could have been prevented by the requesting party.”
Id. If all three parts of the test are met, then abatement may be an appropriate
remedy if lesser remedies are insufficient. Jd.

In this case, a urine sample taken from the victim shortly after the sexual
assault occurred was destroyed without any testing because it apparently had not
been properly sealed. Appellant raised the issue at trial through a motion for
appropriate relief, seeking abatement. After hearing argument and adopting the facts
presented by appellant, the military judge denied the motion for abatement, holding
that the urine sample was not of central importance to the case. We agree.
SMITH—ARMY 20180286

At best, testing of the sample would have revealed the presence or absence of
any drugs in Ms. AT’s system near the time of the assault.2> However, as the
government points out, the case was not premised on Ms. AT being drugged, or even
whether Ms. AT consumed any alcohol at all. Instead, appellant’s remaining
conviction is for engaging in a sexual act with Ms. AT while she was too intoxicated
to consent due to her consumption of alcohol. While the presence or absence of
drugs might have been relevant if the government presented evidence that Ms. AT
was unable to consent because she was impaired by some other type of intoxicant,
here, the government focused their argument and evidence entirely on Ms. AT’s
level of intoxication after her consumption of alcohol. No evidence was presented
indicating that appellant had administered any drug to Ms. AT, and no evidence was
presented that Ms. At was under the influence of anything other than alcohol. Ms.
AT herself testified only that she was intoxicated from alcohol. Appellant’s expert
also testified that Ms. AT’s symptoms were consistent with alcohol, not other drug
use. Finally, during closing argument, the government stressed that the case was
strictly about alcohol. Accordingly, based upon all of the foregoing, we hold that
the destroyed urine sample was not of central importance to any issue in the case.
As such, the military judge did not abuse his discretion in denying appellant’s
request to abate the proceedings.

Cross-Examination of Mr. McDonald

Appellant’s third assignment of error alleges that his constitutional right to
confrontation was violated when the military judge improperly limited his cross-
examination of Mr. McDonald. Again, we disagree.

On cross-examination, trial defense counsel sought to question Mr. McDonald
about an outstanding bench warrant for an unrelated physical assault against a
former employee. When trial counsel objected, defense counsel initially responded
that the warrant and underlying assault were evidence of bias under Military Rule of
Evidence [Mil. R. Evid.] 608(c). Specifically, defense counsel argued that the
evidence demonstrated that the “walls were closing in on [the witness], so much that
he’s assaulted people he worked with and is willing to go to really, any length to get
the money he needs,” including “putting [appellant] behind bars so he can take back
the Merry Maids franchise.” When the military judge asked defense counsel to
clarify how that rule applied, defense counsel apologized for misspeaking and
indicated that the evidence was intended to be offered under Mil. R. Evid. 608(b)(1),

 

3 Appellant’s expert testified that the urine sample might also have revealed the
presence or absence of alcohol. However, he was clear it could not have provided
information on Ms. AT’s blood alcohol content. Given the overwhelming evidence
of alcohol use, we find that any results from the urine sample regarding the mere
presence of alcohol would have been cumulative.
SMITH—ARMY 20180286

aS a specific instance of conduct probative to Mr. McDonald’s character for
truthfulness. The military judge ruled that an allegation of an unrelated physical
assault was not probative on the witness’s truthfulness and instructed trial defense
counsel to move on to another question. Defense counsel did not revisit Mil. R.
Evid. 608(c) as a basis for admitting the testimony.

Trial rulings limiting cross-examination are reviewed for an abuse of
discretion. United States v. Shaffer, 46 M.J. 94, 98 (C.A.A.F. 1997) (citation
omitted). Here, we hold that the military judge did not abuse his discretion in
limiting the cross-examination of Mr. McDonald on a bench warrant for an unrelated
assault. The military judge controls the examination of witnesses and has broad
discretion to impose reasonable limits based upon grounds such as prejudice,
confusion of the issues, and relevance. See Mil. R. Evid. 611; United States v.
Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (citing Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986)). In this case, defense counsel clarified the theory of admissibility
for the bench warrant testimony was Mil. R. Evid. 608(b)(1), which allows inquiry
into specific instances of conduct on cross-examination only if they are probative of
the witness’s character for truthfulness. However, the warrant was apparently for an
unrelated physical assault. The military judge ruled that a warrant based on a
physical assault was not probative of the witness’s truthfulness. That ruling was
certainly not an abuse of discretion. See United States v. Montgomery, 56 M.J. 660,
667 (Army Ct. Crim. App. 2001) (“Acts of violence . .. generally have little or no
direct bearing on honesty and integrity.”) (citing United States v. Weaver, 1 M.J.
111, 118 n.6 (C.M.A. 1975)).

Further, even if the military judge erred, we are convinced the error was
harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 681. During
cross-examination, trial defense counsel successfully drew out inconsistencies in Mr.
McDonald’s testimony, as well as evidence of bias and motive to fabricate based
upon financial strain. Moreover, trial defense counsel demonstrated that the witness
had previously lied to law enforcement. See Montgomery, 56 M.J. at 667 (lying to
police is highly probative of veracity). In this context, questions about an unrelated
physical assault would have added little to the weight of the already extensive cross-
examination.

Finally, we hold that appellant abandoned Mil. R. Evid. 608(c) as a basis for
admission without receiving a ruling from the military judge, and instead chose to
offer the evidence under another section of the Mil. R. Evid. 608. Accordingly, we
find appellant waived that ground for admission. United States v. Pacheco, 2019
CCA LEXIS 77, 8 n.9 (Army Ct. Crim. App. 26 Feb. 2019). Even if the error was
preserved, as we explained above, the error was harmless beyond a reasonable doubt.
SMITH—ARMY 20180286
Post-Trial Delay
Lastly, appellant argues that dilatory post-trial processing in his case warrants
relief. After considering the four factors laid out in Barker v. Wingo, 407 U.S. 514,
530-32 (1972), we find that appellant suffered no prejudice as a result of any delay
in the post-trial processing of his case, and is therefore entitled to no relief.

CONCLUSION

Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.*

Chief Judge KRIMBILL and Senior Judge BURTON concur.

FOR THE COURT:

ible

MALCOLM H. SQUIRES, JR.
Clerk of Court

 

4 As noted by the military judge, Specifications 2 and 4 of the Charge are
conditionally dismissed, subject to Specification 3 of the Charge surviving appellate
review.

10
