United States v. Tovarchavez
| Decision Date | 31 May 2019 |
| Docket Number | Crim. App. 20150250,18-0371 |
| Parties | UNITED STATES Appellee v. Juventino TOVARCHAVEZ, Specialist United States Army, Appellant |
| Court | United States Court of Appeals, Armed Forces Court of Appeals |
Argued February 21, 2019
Military Judges: Gregory Gross (trial) and Timothy P. Hayes Jr. (DuBay hearing)
For Appellant: Captain Augustus Turner (argued); Lieutenant Colonel Christopher P. Carrier, Lieutenant Colonel Tiffany D Pond, and Major Todd W. Simpson (on brief).
For Appellee: Captain KJ Harris (argued); Colonel Steven P Haight, Lieutenant Colonel Eric K. Stafford, and Major Wayne H. Williams (on brief); Captain Joshua B. Banister.
OPINION
Appellant was charged with two specifications of sexual assault in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012), for sexually assaulting a fellow soldier, Specialist (SPC) JR, on two separate occasions. A panel of officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his plea, of one specification, and acquitted him of the other specification. He was sentenced to confinement for two years reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence.
The United States Army Court of Criminal Appeals (ACCA) affirmed the findings and the sentence as approved by the convening authority. United States v. Tovarchavez, No. ARMY 20150250, 2018 CCA LEXIS 371, at *28, 2018 WL 3570591, at *11 (A. Ct. Crim. App. July 19, 2018). We granted Appellant's petition to review the following issue:
Whether the Army court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court's own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing this case using the standard for nonconstitutional error.
As an initial matter, we note that the ACCA made no such findings. Rather, it distinguished United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006), from this case, found that this Court's precedent established that forfeited United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), errors are tested for "plain error," and conducted an Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012), [1] analysis to determine whether the forfeited constitutional error "materially prejudiced Appellant's substantial rights." Tovarchavez, 2018 CCA LEXIS 371, at *4-8, *15-19, 2018 WL 3570591, at *2-3, *6-8. However, the ACCA did not determine whether the constitutional error in this case[2] was harmless beyond a reasonable doubt. Id. at *19, 2018 WL 3570591, at *8. Instead, it evaluated prejudice for nonconstitutional error using the effect-on-the-trial test announced in Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016). See id. at *16-19, 2018 WL 3570591, at *7-8.
This was an incorrect application of the law and flatly inconsistent with established precedent of this Court. Contrary to the ACCA's holding, [3] the options available to a court in the military justice system under Article 59, UCMJ, are not a choice between "plain error" or "the Chapman standard." Rather, just as a "substantial right" can be either constitutional or nonconstitutional, "material prejudice" for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right. Consistent with our precedent, we hold that where a forfeited constitutional error was clear or obvious, "material prejudice" is assessed using the "harmless beyond a reasonable doubt" standard set out in Chapman v. California, 386 U.S. 18 (1967). United States v. Jones, 78 M.J. 37, 45 (C.A.A.F. 2018).
That standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction. Chapman, 386 U.S. at 24. We are unable to say with certainty that the erroneous propensity instruction at issue in this case "did not taint the proceedings or otherwise 'contribute to [Appellant's] conviction or sentence.'" United States v. Williams, 77 M.J. 459, 464 (C.A.A.F. 2018) (quoting Hills, 75 M.J. at 357). The decision of the ACCA is reversed.
SPC JR testified at trial about two sexual assaults as follows. On September 5, 2014, SPC JR was sitting with Appellant in his truck. Appellant twice tried to kiss SPC JR, but she refused. Appellant then attempted to pull down SPC JR's pants, and, after a period of resistance, she gave up and Appellant penetrated her vagina with his penis. She did not report the incident, which was the basis for Specification 1 of the Charge.
On September 10, 2014, Appellant texted SPC JR about returning some military gear that he had borrowed from her. SPC JR agreed, and Appellant met her at her barracks room. After a brief interaction with Appellant, SPC JR went to her bedroom to grab her keys to leave. Appellant followed her, closed the bedroom door, and tried to kiss her. Appellant then pushed her onto her bed and tried to pull down her sweatpants. Once again, SPC JR attempted to resist, but Appellant was able to pull her sweatpants down far enough to penetrate her vagina with his penis. This incident was the basis for Specification 2 of the Charge.
The next day, SPC JR informed two friends as well as her parents about the sexual assault. Her father called the Criminal Investigation Division and reported the incident. SPC JR received a medical exam that revealed DNA profiles linked to both Appellant and an unknown individual.
As part of the investigation, SPC JR sent Appellant the following pretext messages:
Appellant did not testify at trial. The defense theory of the case was that SPC JR did not credibly recount the events forming the basis of Specifications 1 and 2 of the Charge. Defense counsel also sought an instruction for a mistake of fact as to consent defense for both specifications. The military judge concluded that there was insufficient evidence to give the requested instructions.
At the close of evidence, the military judge informed counsel that he planned to give the panel the standard Military Rule of Evidence (M.R.E.) 413 instruction. Defense counsel did not object. The military judge instructed the panel:
If you determine by a preponderance of the evidence the offense alleged in Specification 1 occurred, even if you are not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to Specification 2 of the Charge. You may also consider the evidence of such other sexual offense for its tendency, if any, to show the accused's propensity or predisposition to engage in sexual offenses.
Appellant was convicted of Specification 2 of the Charge, and the case came to the ACCA for review under Article 66, UCMJ, 10 U.S.C. § 866, where it was initially remanded for a DuBay hearing[4] on an unrelated matter. In between Appellant's court-martial and the final resolution of his appeal, this Court decided Hills, which held that the M.R.E. 413 propensity instruction violated the constitutional right of an accused to be presumed innocent until proven guilty. 75 M.J. at 357. Consequently, Appellant's failure to object constituted forfeiture rather than waiver and the ACCA was required to determine whether giving a constitutionally infirm instruction constituted "material prejudice." Tovarchavez, 2018 CCA LEXIS 371, at *3-4, 2018 WL 3570591, at *1-2.
The ACCA recognized that the instruction given in the instant case "was for all substantive purposes identical to the instruction . . . found to be in error in United States v. Hills." Id. at *3, 2018 WL 3570591, at *1. Yet it also determined that the Hills error was forfeited here, and despite clear precedent to the contrary, chose to assert that this Court's precedent required Appellant to" 'show a reasonable probability that, but for the error,' the outcome of the proceeding would have been different"-the prejudice analysis articulated in Molina-Martinez, 136 S.Ct. at 1343 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).[5] Tovarchavez, 2018 CCA LEXIS 371, at *11-19, 2018 WL 3570591, at *5-7.
Of course, the error in Molina-Martinez was not a constitutional error, and its test is the "material prejudice" showing this Court requires for both preserved and unpreserved nonconstitutional errors. United States v. Lopez, 76 M.J. 151, 154, 156 (C.A.A.F. 2017) (internal quotation marks omitted) (citation omitted). But the test for constitutional error set forth in Chapman and long followed by this Court was not disturbed by Molina-Martinez, and "[w]hen [this Court reviews] a constitutional issue . . . for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt." Jones, 78 M.J. at 45.
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