United States v. Specialist CORTIS E. SLOAN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before JOHNSON, COOK, and BURTON Appellate Military Judges UNITED STATES, Appellee v. Specialist CORTIS E. SLOAN United States Army, Appellant ARMY 20090241 Headquarters, V Corps Edward J. O’Brien, Military Judge Colonel Flora D. Darpino, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Shay Stanford, JA; Captain Michael E. Korte, JA (on brief). For Appellee: Major Christopher B. Burgess, JA; Major LaJohnne A. White, JA; Captain Benjamin M. Owens-Filice, JA (on brief). 24 June 2011 --------------------------------- SUMMARY DISPOSITION --------------------------------- JOHNSON, Senior Judge: A panel composed of officer and enlisted members sitting as a general court-martial convicted appellant, contrary to his pleas, of making a false official statement and aggravated sexual assault of a child, in violation of Articles 107 and 120, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 907 and 920. The panel sentenced appellant to confinement for seven years, reduction to the rank of Private E1, total forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence. Appellant raises three assignments of error, one of which merits discussion. We modify the findings below with respect to the Article 107 violation, and affirm the remaining findings and sentence. Appellant was convicted of making a false official statement based on his two specific claims to a Criminal Investigative Command (CID) Special Agent (SA) [hereinafter “SA DP”] that, “no, I did not touch any part of Miss B.R.’s genitals” and “no, I did not even kiss Miss B.S. on the mouth and put my tongue in her mouth.” Appellant maintains his conviction “must be set aside in part where it was based on an uncorroborated confession of an offense the alleged victim recanted before trial.” Military Rule of Evidence (Mil. R. Evid.) 304(g), in relevant part, provides: An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently the inference of their truth. See also United States v. Arnold, 61 M.J. 254, 256-57 (C.A.A.F. 2005) (quoting and discussing Mil. R. Evid. 304(g). Additionally, “[i]ndependent evidence is evidence that is not based or derived from the accused’s extrajudicial statements.” Id. at 256 (citing Opper v. United States, 348 U.S. 84, 93 (1954). In addition, If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence. Mil. R. Evid. 304(g). The government produced no corroboration for appellant’s confession that he kissed his daughter and put his tongue in her mouth. We conclude that admitting the confession, for purposes of proving the falsity of his first statement, i.e., “No, I did not ever kiss Miss B.S. on the mouth and put my tongue in her mouth,” was plain error. We therefore except out that language from Charge I and its Specification and affirm only so much of Charge I and its Specification as finds appellant “Did, at or near FOB Hammer, Iraq, on or about 8 August 2008, with intent to deceive, make to [SA DP], an official statement, to wit: ‘no, I did not touch any part of Miss B.R.’s genitals,’ or words to that effect, which statement was totally false, and was known by the said Specialist Cortis E. Sloan to be so false.” The excepted language does not dramatically change the sentencing landscape for appellant. Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-309 (C.M.A. 1986) and United States v. Moffeit, 63 M.J 40, 42-44 (C.A.A.F. 2006), to include those factors identified by Judge Baker in his concurring opinion in Moffeit, we are confident with our determination in this case. We affirm the remaining findings of guilty, and affirm the sentence as approved by the convening authority. Judges COOK and BURTON concur. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court