Can you succeed on appeal in a sexual assault case?

The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.

In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.

  • A military judge accepted the appellant’s pleas of guilty to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery.
  • The military judge convicted the appellant of one specification of rape.
  • The military judge acquitted the appellant of two other specifications alleging aggravated sexual assault and wrongful sexual contact.
  • On appeal, the appellant challenged the factual sufficiency of the rape conviction and the sentence.
  • We find the appellant’s rape conviction factually insufficient.
  • 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 court is “convinced of guilt beyond a reasonable doubt.”
  • In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.”
  • A factual sufficiency determination is limited to a review of the “entire record,” limited only to evidence presented at trial.

As expected, the prosecution “appealed” the decision to the Court of Appeals for the Armed Forces (CAAF).  The following entry from CAAF’s daily journal 2 April indicates:

Appeals – Summary Dispositions

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 338422. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Dec. 19, 2014)), and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding Appellee’s rape conviction, and any lesser offense, factually insufficient. Accordingly, it is ordered that the certified questions are answered in the negative and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

This means that the CAAF affirmed AFCCA’s entry of the equivalent of a not guilty finding.  They will not be able to do a retrial.

This is just a recent example of a sexual assault case where the court has overturned the conviction.  Keep in mind no two cases are alike, and that the success here does not mean your appeal will succeed.  No lawyer can guarantee a specific result.