United States v. Yarbrough

United States Navy-Marine Corps Court of Criminal Appeals · 2015 · Evidence

EvidenceQuiroz testabusive sexual contactindecent actsame transactioncircumstantial proof of intentlegal sufficiencyfactual sufficiency

Facts

On 2 June 2012, A1C MR went to a hotel room after drinking and lay down fully clothed to rest. She testified that she awoke in an alcohol-induced fog to AMN DA removing her shirt and bra and the appellant pulling down her pants and underwear, after which the appellant, while naked, touched her breasts, pubic area, buttocks, and genitalia as she said no and tried to cover herself. The appellant argued his conduct was a joke, but the Government introduced admissions indicating he was interested in group sexual encounters. Based on this same incident, he was convicted of both abusive sexual contact and an indecent act for touching A1C MR in the presence of another person.

Issue

Whether the evidence was legally and factually sufficient to prove that the appellant committed abusive sexual contact with the requisite sexual intent, and whether convicting him of both abusive sexual contact and an indecent act for the same touching constituted an unreasonable multiplication of charges. The court also considered whether Article 120(k) was unconstitutionally vague as applied in this appeal.

Rule

Legal sufficiency asks whether, viewing the evidence in the light most favorable to the prosecution, any reasonable fact-finder could find all essential elements beyond a reasonable doubt. Factual sufficiency asks whether, after weighing the evidence and making allowances for not having seen the witnesses, the appellate court is itself convinced of guilt beyond a reasonable doubt. In deciding unreasonable multiplication of charges, the court applies the five Quiroz factors: whether the accused objected at trial, whether each charge targets distinctly separate criminal acts, whether the charges exaggerate criminality, whether they unreasonably increase punitive exposure, and whether there is evidence of prosecutorial overreaching; what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Norfolk, Virginia, Evan Mercer attended a party with Lena Ortiz and several sailors. After Lena fell asleep on a couch, witnesses testified that Evan unbuttoned her jeans, slid his hand inside her underwear, and rubbed her genital area while she groggily said, "stop." The government also introduced Evan's text messages from earlier that week saying he wanted to "try something with two women at once."

If Evan argues on appeal that the evidence was legally insufficient because no one proved his subjective intent directly and he claims he was only "messing around," how should the appellate court rule?

Explanation. Legal sufficiency asks whether, viewing the evidence in the light most favorable to the prosecution, any reasonable fact-finder could find the essential elements beyond a reasonable doubt. The majority opinion explained that intent may be proved by circumstantial evidence, including undressing an impaired person, touching intimate areas, and admissions showing interest in group sexual encounters. Evan's "messing around" claim does not defeat legal sufficiency. (Derived from United States v. Yarbrough (n.d.).)