UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                         WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                 Appellate Military Judges

                              UNITED STATES, Appellant
                                            v.
                              Specialist GERALD D. ARNO
                              United States Army, Appellee

                                   ARMY MISC 20180699

                             Headquarters, Fort Drum
                         Teresa Raymond., Military Judge
          Lieutenant Colonel Jennifer A. Neuhauser, Staff Judge Advocate


For Appellee: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Benjamin J. Wetherell, JA; Captain Benjamin A. Accinelli, JA (on brief).

For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Allison L. Rowley, JA; Captain Catharine M. Parnell, JA (on brief).


                                        26 February 2019

                 ----------------------------------------------------------------------
                   SUMMARY DISPOSITION AND ACTION ON APPEAL
                      BY THE UNITED STATES FILED PUSUANT TO
                  ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 ----------------------------------------------------------------------

Per Curiam:

       Today we determine that the military judge erred as a matter of law when she
suppressed statements made by the accused for lack of corroboration. Accordingly,
we grant the government’s appeal pursuant to Article 62, Uniform Code of Military
Justice [UCMJ]. 1


1
 On 23 May 2018, the convening authority referred the following specifications
against the accused to a general court-martial: two specifications of sexual assault;
two specifications of abusive sexual contact; and, one specification of indecent
conduct in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920 and 934
(2012). All of the charged offenses are alleged to have occurred on one occasion in
September 2015 involving the same alleged victim.
ARNO—ARMY MISC 20180699

                                   BACKGROUND

       The accused and the alleged victim were both soldiers who had deployed
together to Honduras from April 2015 until April 2016. After the deployment, they
continued to occasionally text each other. On 15 June 2017, in the midst of a text-
message conversation, and apropos of nothing, the accused sent the alleged victim
the following text:

             Well damn lol. Is it crazy that even though we never had
             sex I still remember what your pussy feels, smells, and
             tastes.

      The text conversation continued without the alleged victim directly addressing
what appellant had said. The accused then brought it up again:

             Well all I can say is one regret that I don’t have is that I
             played with your pussy and tasted it while you were
             passed out[,] not the right answer but it happened.

       After the subsequent involvement of law enforcement, the accused admitted to
a U.S. Army Criminal Investigation Command (CID), special agent that he had
digitally penetrated the alleged victim while she was asleep.

      The defense moved to suppress the accused’s statements for lack of
corroboration under Military Rule of Evidence [Mil. R. Evid.] 304(c).

       To corroborate the accused’s statements, the government introduced evidence
that the accused and alleged victim were both deployed together in Honduras, had
hung out with each other and would get intoxicated together, and would both be in
her room. There was also evidence the accused was sexually interested in the
alleged victim and would make sexually suggestive comments to her. The alleged
victim took a combination of medications that made her sleep heavily during the
deployment.

       The government also provided the court with a text message exchange from
the Honduras deployment that begins with the accused asking, “We are good right?”
The alleged victim responds by stating that she has no memory of the previous
night’s events, and asks the accused if she had remained clothed. After discussing
whether or not she had vomited, and after she complains of a severe hangover, the
accused stated, “I’d be [sic] lying if I said I didn’t want to sleep with you last
night.”




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ARNO—ARMY MISC 20180699

      The alleged victim had no memory of having any sexual contact with the
accused. The government proffered no physical evidence to support that a sex act
had happened.

      The military judge granted the accused’s motion to suppress the accused’s
statements. The military judge rejected the government’s argument that the
statements were corroborated. 2 The military judge found as follows:

             The Government produced only evidence confirming
             issues tangential to the subject matter of the confessions
             and admissions made by the Accused. None of the
             corroborating evidence produced had anything to do with
             the criminal conduct to which the Accused had confessed
             about which he felt guilty or incriminated himself.

       Essential to the military judge’s ruling was that the corroborating evidence
must directly address the part of the accused’s statement that admits guilt. The
corroboration, the military judge ruled, “needs to address the ‘acknowledgement of
guilt’ or ‘incriminating statement.’” Here, as the accused admitted to sexual
conduct with a passed out person, the military judge’s ruling required the
government to corroborate that the victim was passed out and that the sexual act
occurred. 3

        The military judge therefore found that the government’s proffered
corroboration had “no relevance specifically to the confessions and admissions at
all.” 4


2
 The military judge also rejected the government’s arguments that the text messages
were separately admissible as a present sense impression and as residual hearsay.
3
 Immediately after professing a lack of memory of the night before, the alleged
victim asks the accused, “What happened?” and “Did I keep my clothes on?” While
other interpretations are possible given the record, one interpretation is that the
alleged victim was expressing a concern that she had engaged in sexual conduct that
she could not recall.
4
 In her initial ruling on the motion to suppress the military judge concluded her
ruling by stating:

             The sending of sexually suggestive or explicit texts is not
             sufficiently indicative of sexual assault. To conclude
             otherwise would be to indict an entire generation in our
             current sexting-heavy society.
                                                                       (continued . . .)


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ARNO—ARMY MISC 20180699

                             LAW AND DISCUSSION

       We conclude the military judge misapplied the law. Military Rule of
Evidence 304(c) requires that the government introduce evidence that would “tend”
to establish the trustworthiness of the admission. The quantum of the evidence
required is “slight.” See Mil. R. Evid. 304(c)(4) (“The independent evidence need
raise only an inference of the truth of the admission or confession.”); see also
United States v. Jones, 

, 42 (C.A.A.F. 2018) (“[The CAAF has]
traditionally [] described the quantum of evidence needed as being ‘slight.’”) (citing
United States v. Adams, 

, 140 (C.A.A.F. 2015)).

      Nothing in the rule requires that the evidence tending to establish
trustworthiness is limited to the criminal act itself. When an accused confesses to
committing a certain crime in a certain place in a certain manner, evidence that the
accused was actually at that place, and had the specific motive to commit that crime,
can be considered when determining whether the confession is trustworthy. Motive
and opportunity are not irrelevant considerations.

       Instead, the military judge required that the corroboration evidence come only
from evidence corroborating the “criminal conduct to which the Accused had
confessed . . . .” There is not much daylight between the standard articulated by the
military judge, and a requirement that the government corroborate the corpus delicti
of the offense; a standard which courts at all levels have rejected. See, e.g., Opper
v. United States, 

(1954); United States v. Seay, 

(C.A.A.F.
2004); United States v. Egan, 

(Army Ct. Crim. App. 2000).

      Now, to be sure, just because there is evidence that tends to establish the
trustworthiness of an accused’s confession does not mean that the truth of the
confession has been determined. An accused is free to attack the admissibility of the
evidence on other grounds or may seek to undermine the weight the factfinder
should give the evidence.




(. . . continued)
The text messages in question are not merely “sexually suggestive” or “explicit.”
The messages admit to “tasting” and “play[ing] with” the genitals of a woman who is
“passed out.” A person who is asleep or unconscious is incapable of giving consent
as a matter of law. See UCMJ art. 120(b)(2). To conclude that the messages are not
“indicative of sexual assault” is grossly inconsistent with the UCMJ. However, this
language was not included in the military judge’s final ruling, which is the focus of
this court’s opinion.



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ARNO—ARMY MISC 20180699

                                  CONCLUSION

       The military judge’s ruling suppressing the accused’s statements is SET
ASIDE, the government appeal is GRANTED, and the case is returned to the
military judge for action consistent with this opinion.

                                       FOR THE COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




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