NMCCA has decided United States v. Walton. In that case they dismissed an adultery and indecent language conviction based on Fosler, without discussion of the issue. I sort of assume they feel comfortable that Lansford, Gibson (which I posted here) and Leubecker (which I posted here) sufficiently explain NMCCA’s thinking on how to deal with Fosler.
However, I would note that Walton was a fully contested rape case which resulted in a NG on the rape. I was the defense counsel (and no I didn’t file a motion). We were too busy with the false rape allegation. (The “rape victim” called her friend after the sex, appeared to say she liked it, “and would do it again.” When she and accused were investigated for alcohol and fraternization the “victim” admitted consensual sex, or words to that effect. After she was advised of a potential summary court-martial and shortly after the erroneous (IMHO) sexual assault training, the “victim” claimed rape.)
Anyway, the point about NMCCA’s decision is that it was a contested case, not a guilty plea case like Lansford, Gibson,and Leubecker, and the issue wasn’t raised at trial. It appears that NMCCA will rely on the same rationale as they have expounded for guilty plea cases? Keep in mind that this was a clear fraternization case, albeit beginning as a false rape allegation.
I was also interested to hear during the Dominique oral argument the other day, one of the appellate judges asked the defense counsel whether they (NMCCA) has been deciding the Fosler trailer cases correctly. Dominique has a Fosler issue; so my perception that the judge was polling the audience (perception from the tone and words) was likely just that, my own perception. Apparently a similar question has been asked in a prior oral argument to which the appellate counsel had apparently said ‘no.’