Navy-Marine Corps Court of Criminal Appeals

United States v. Harvey

A panel of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of indecent exposure in violation of Article 120(c), Uniform Code of Military Justice [UCMJ], but acquitted him of one charge of sexual assault and one charge of battery, charged as violations of Articles 120 and 128, UCMJ. He was sentenced to one year, RiR, and a DD. In a published opinion, the court tells us

Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*]

[*] Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021.

The legal issue relates to the standard of review and what does the phrase "deficiency of proof" mean.

Appellant contends that a “deficiency in proof” means a weakness in the evidence presented to support an element, not a complete absence of evidence on an element. The Government contends that “deficiency in proof. . . must allege a defect in evidence that, if valid, would undermine at least one element of an offense.” Complete absence of evidence on an element of a charged offense would, of course, render a conviction legally insufficient because a reasonable fact-finder could not find all the essential elements beyond a reasonable doubt.” The parties in this case substantially agree on this point.

​Regarding identification of the element (or elements) of the crime for which there is a deficiency in proof, we hold that this means that an appellant must identify a weakness in the evidence admitted at trial to support an element (or more than one element) and explain why, on balance, the evidence (or lack thereof) admitted at trial contradicts a guilty finding.

The reviewing court must give deference to the fact finder having heard and seen the witness, not "recognizing" the fact finder heard and saw the witnesses--a higher standard. However, 

We hold that “appropriate deference” does not mean that this Court can no longer make any credibility determinations of witnesses, as the Government argues. This is because the statute explicitly allows this Court to “weigh the evidence and determine controverted questions of fact.” Obviously, testimony is part of the evidence to be weighed, and the qualifier in the subsection requires “appropriate deference” rather than entirely eliminating credibility determinations regarding testimony from the evidence to be weighed. And because members do not make special findings or explain how they weighed the evidence admitted at trial in reaching a general verdict (apart from sometimes indicating a minor variance in charged language or making a finding of guilt to a lesser included offense), we find that “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence” is a higher standard than the prior “recognizing that the trial court saw and heard the witnesses.”

Further, thee was disagreement between the parties about what the phrase ""clearly convinced" and "against the weight of the evidence" means.

​We find that the revised statute requires a departure from the prior practice, and the standard for factual sufficiency has become harder for an appellant to meet. It is clear that the factual sufficiency standard in the revised Article 66, UCMJ, statute has altered this Court’s review from taking a fresh, impartial look at the evidence requiring this Court to be convinced of guilt beyond a reasonable doubt, to a standard where an appellant has the burden to both raise a specific factual issue, and to show that his or her conviction is against the weight of the evidence admitted at trial. Thus, Congress has implicitly created a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty. 

The court went on to address the specific deficiencies raised by the appellant and found the charges legal sufficient.

The appellant also challenged the MJ's failure to give a mistake as to consent defense instruction. The court finds that a mistake as to consent is not a viable defense to the charged conduct. It did not help the appellant's cause that the offenses took place "in public." The court relies on United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) and United States v. Bailey, 77 M.J. 11 (C.A.A.F. 2017) for its analytical framework.

The court also found (harmless) error in submitting a stipulation for a prior court-martial as a personnel record under R.C.M. 1001(b)(2).