United States v. Tollinchi

50 M.J. 874, 1999 CCA LEXIS 205, 1999 WL 569261
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJuly 16, 1999
DocketNMCM 98 00246
StatusPublished
Cited by3 cases

This text of 50 M.J. 874 (United States v. Tollinchi) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tollinchi, 50 M.J. 874, 1999 CCA LEXIS 205, 1999 WL 569261 (N.M. 1999).

Opinion

SEFTON, Chief Judge:

Appellant was tided in December 1996 on various dates by a general court-martial eom-posed of officer and enlisted members.1 He was convicted contrary to his pleas of attempted oral sodomy, two specifications of violating a lawful general order, rape, sodomy, two specifications of indecent assault, and adultery, in violation of Articles 80, 92, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 920, 925, and 934 (1994). Appellant was sentenced to confinement for 5 years, total forfeitures, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

We have carefully reviewed the entire record of trial, appellant’s brief and assignment of errors, and the Government’s response. We find the proceedings correct in law and fact, and that no error prejudicial to the substantial rights of appellant occurred in the proceedings below. Arts. 59(a) and 66(c), UCMJ. Our reasoning follows.

Factual Background

From May 1995 to January 1996, appellant was assigned as a recruiter in Bronx, New York. In that capacity, appellant met NF, a high school student, whom he recruited into the Marine Corps.2 On 6 December 1995, NF successfully completed the qualification testing required for enlistment. Following the test, NF spoke to appellant, who indicated that he had done well and that the two should meet to discuss the test later that day. NF then met with his then girlfriend, 17-year-old EH, at NF’s house. After a few hours, both went to appellant’s office. Appellant then drove the couple back to NF’s house so that his parents could sign parental consent forms allowing NF to join the Marine Corps. Recruiting files, for which appellant was responsible, indicated that these forms were signed at 1930 on 6 December 1995.3 Prosecution Exhibit 2; Record at 89. [876]*876After 30 to 45 minutes at NF’s house, appellant drove EH and NF back to appellant’s office. NF thought they were returning to fill out more paper work. EH thought they were all going to go out for dinner. However, neither of their expectations eventualized.

Once back at the recruiting office, appellant produced a bottle of liquor and suggested that the three of them have a drink to celebrate NF’s commitment to the Marine Corps. After an initial drink, appellant continued to “toast” NF and persuaded NF and EH to take several more drinks, until both were intoxicated. Appellant then told EH she should kiss NF to celebrate. EH was pressed by appellant to “give him a real kiss.” Appellant continued to press for more passion, ultimately encouraging the couple to disrobe and become ever more physically intimate. Soon thereafter, appellant moved closer to the couple and touched EH on the breast and vaginal area. He then pushed NF over and began to perform cunninlingus on EH. Soon thereafter, he entered her vaginally with his penis. Appellant then desisted, and encouraged NF to commit oral sodomy on EH. Appellant then moved around NF, and attempted to place his penis in EH’s mouth. NF testified that in order to dissuade appellant, and at her insistance, he feigned intercourse with EH. Appellant then began to masturbate, eventually ejaculating on EH’s breasts and partly on NF’s back, as they lay on the floor of the office. EH became hysterical, got up, and went to the head. Appellant dressed, gave NF $20 for taxi fare, and left the office.

Sufficiency of the Evidence

We must, ourselves, independently determine both the legal and factual sufficiency of the evidence presented at trial. United States v. Turner, 25 M.J. 324 (C.M.A. 1987). The test for legal sufficiency is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The test for factual sufficiency “is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the reviewing court are themselves convinced of the accused’s guilt beyond a reasonable doubt.” Id. at 325, 99 S.Ct. 2781.

The term reasonable doubt does not mean that the evidence must be free from conflict. See United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.1986). Appellant claims that the evidence was insufficient to support findings of guilty of the offenses of rape, attempted oral sodomy, sodomy, and indecent assault on EH. He is mistaken. We have thoroughly reviewed the record and are convinced that the evidence supports the findings of guilty. While there are variances in the testimony of the primary Government witnesses, NF and EH, we are left with no question as to the fact that their recollection of events more than adequately support the occurrence of the offenses of which appellant was convicted. We ourselves independently find the facts recounted in the previous section of this opinion to have established the elements of each offense beyond a reasonable doubt.

Notwithstanding their intoxication, the two were able to remember appellant’s conduct on the night of the offenses with ringing clarity. The evidence on the offenses in question was just as clearly before the trier-of-fact below, and is in the record for our review today. Appellant asserts that EH and NF were not credible. Appellant’s Brief and Assignment of Errors of 29 Dec 1998 at 7-8. He claims that EH delayed in reporting the rape, and only told her mother so she could go to a concert. Id. EH, like many rape victims, felt guilty as a result of the events. Record at 179. A few weeks after the rape she confided in a friend, and was convinced to contact the police. When she did so, the reception she received was, in her mind, unsympathetic, which dissuaded her from further reporting the offenses elsewhere. Record at 178-80. The friend in whom she had confided ultimately told a guidance counselor at her school, who called EH’s mother. Id. EH’s mother then talked [877]*877to her in March 1996 and convinced EH to tell her what had happened.

EH had no apparent ulterior motive in reporting these events and was obviously simply reluctant to report appellant’s offenses. Id. Her version of events is corroborated on all salient points by NF. NF had no continuing romantic or friendship connection with EH at the time of trial, and no motive to lie, especially considering the extremely poor light in which his testimony cast him. In fact, he might well be presumed to have had many motivations to say that these events never occurred, since his own participation is hardly the pinnacle of honor, courage, or commitment.

We find the initial reticence by NF to “come clean” indicative more of his age, immaturity, confusion, and perhaps shame, than of any preconceived desire to somehow sully appellant’s reputation.

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Related

United States v. Tollinchi
54 M.J. 80 (Court of Appeals for the Armed Forces, 2000)
United States v. Quiroz
53 M.J. 600 (Navy-Marine Corps Court of Criminal Appeals, 2000)

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Bluebook (online)
50 M.J. 874, 1999 CCA LEXIS 205, 1999 WL 569261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tollinchi-nmcca-1999.