Former Baylor football player Samuel Ukwuachu will return to being a convicted sex offender -- for now -- after the Texas Court of Criminal Appeals ruled Wednesday that a lower appeals court erred last year when it overturned Ukwuachu's conviction based on certain text messages not allowed into evidence in his trial.
The judges' unanimous 9-0 decision stated that the trial court did not abuse its discretion when it did not allow into evidence text messages the woman sent to her friend while the woman and Ukwuachu were traveling to his apartment on the night of the reported assault. In a concurring opinion, judges wrote that the exclusion of the messages was "harmless" to Ukwuachu's case.
In March 2017, Waco's 10th Court of Appeals ruled to overturn Ukwuachu's conviction and give him a new trial. The three-judge panel determined that the trial court should have allowed into evidence the series of text messages between the woman and a friend of hers sent immediately before the reported assault in October 2013. They wrote that the text messages concerned past sexual behavior between the woman and Ukwuachu, which he had said indicated her consent to have sex.
Ukwuachu's conviction in August 2015 of having sexually assaulted a female Baylor soccer player was, in many ways, the starting point for the series of public revelations about sexual violence at Baylor University.
The former defensive end had been sentenced to 180 days in jail, 10 years' felony probation and 400 hours of community service, and he had to register as a sex offender. McLennan County prosecutors appealed the decision to overturn the conviction to the Texas Court of Criminal Appeals, which agreed in September 2017 to hear that petition. The court ruled Wednesday in the state's favor. Had it upheld the lower court's ruling, Ukwuachu would have been entitled to a new trial.
Ukwuachu's attorney William A. Bratton said Wednesday that he thought the Texas Court of Criminal Appeals took a very narrow view of the lower appeals court's ruling in making its decision, and he said it wasn't the judges' role to make decisions on how the jury would interpret evidence.
"When judges start saying, 'Well, but juries would look at it this way,' they're just guessing ... the way to do it is to give them the evidence and let them sort through it."
He said that the ruling was disappointing but that "we still have a fight left."
In his initial appeal, Bratton had argued six issues. The lower appeals court had ruled on the text messages and ruled out one argument relating to the initial indictment, but it did not rule on the four other issues. One of those was an allegation of improper use of Ukwuachu's roommate's cellphone records to discredit the roommate's testimony that he was home at the time of the reported assault. In Wednesday's ruling by the Texas Court of Criminal Appeals, the judges wrote that they were sending the case back to the lower appeals court for further proceedings on those other issues.
The woman's attorney, John Clune, said in a text message Wednesday that, "This is a great ruling, but truthfully is the only outcome that seemed consistent with Texas law. We realize the appeal process isn't over, but this is an important victory for crime victims and brings Mr. Ukwuachu one step closer to justice."
The woman, who lost her soccer scholarship at Baylor in the wake of the reported assault, reached a financial settlement with the school in December 2015 and transferred to another university.
Ukwuachu's criminal conviction, which came after a university investigation had cleared him of any wrongdoing, garnered intense media attention and public scrutiny, and prompted Baylor to conduct an internal review of its Title IX practices as more women came forward with reports of assaults by athletes.
In May 2016, the school fired football coach Art Briles and demoted former president Kenneth Starr, who would later resign, as would the school's suspended athletic director, Ian McCaw. There would also be a string of Title IX lawsuits, outside investigations and arrests of three other former football players on sexual assault charges.
Although the lower appeals court judges who initially overturned the conviction had determined that the messages did not prevent Ukwuachu from presenting the substance of his defense, they wrote that because the woman's consent was the central issue for the jury, "we cannot say that we have a fair assurance that the erroneous exclusion of the text messages" did not affect the jury's decision.
Those judges wrote that the text messages were part of an "ongoing conversation" and that after prosecutors sought to introduce one of the messages, "the Rule of Optional Completeness allowed Ukwuachu to inquire into any other part of the same subject, which are the messages in question." During the trial, prosecutors were allowed to introduce into evidence a text message the woman sent to her friend after the alleged assault that read that Ukwuachu had "basically raped [her]."
In Wednesday's ruling by the Texas Court of Criminal Appeals, the judges wrote that, "the court of appeals did not consider whether the excluded text messages, which were arguably not a part of the same text message conversation as the messages introduced by the state, were necessary to explain what had already been admitted into evidence."
One concurring opinion, supported by three judges, also states that the text messages could have been excluded from evidence under Texas' rape-shield law that prohibits certain evidence of a complainant's past sexual behavior from being used at trial, which was also contrary to the lower appeals court ruling.
The concurring opinions released Wednesday included some of the text messages at issue that were exchanged between the woman and her friend just prior to the reported assault. In one of them, her friend texts, "Okay be careful, wrap it up this time!!" to which the woman replies, "I'm not gunna do anytibg!!"
Baylor's January 2014 Title IX investigation report, which the trial court judge did not allow into evidence in the criminal trial, addressed that exchange as well. In that report, the friend told Baylor chief judicial affairs officer Bethany McCraw that text was in reference to the woman and Ukwuachu's prior encounter in which the woman was "freaking out because he 'put it in' a couple and he didn't have a condom on" and that she had to "forcefully push him off of her." The friend told McCaw the follow-up text was meant to read, "I'm not going to do anything," meaning that the woman was "not going to have sex with him."
According to one of the concurring opinions issued Wednesday, the woman then texted her friend information about a party, followed up with a text that read, "He doesn't wanna go," to which her friend replied, "Because he wants to hit," (a likely reference to sex, the judge wrote). The woman responds, "He's not gunna!"
Another two judges, who agreed with the overall ruling, had a slightly different take, writing that, "there was at least some risk that if the jury interpreted the conversation as revealing past sexual conduct between [Ukwuachu] and the victim, the jury could discredit the victim's testimony based upon moral disapproval of her behavior." Yet if that constituted "unfair prejudice" the opinion stated "then it is difficult to see how past sexual behavior ... would ever be admissible to prove consent." Yet in this case, the opinion stated, the omission of evidence was "harmless."
"Though the central issue in the case was consent, the excluded evidence only tended to prove consent through an implication that [Ukwuachu] and the victim had consensual sex in the past. As such, it only weakly supported [Ukwuachu's] defensive theory," it stated.
In fact, the opinion stated, the particular text exchange could be interpreted as to "reinforce the victim's testimony that she had never had sex with [Ukwuachu] before and did not want to have sex with him on the day of the offense."
During the 2015 criminal trial, the woman alleged that Ukwuachu had taken her to his apartment where she tried to resist his advances multiple times before he succeeded in forcing her on her stomach, pushing her head up against a wall and raping her from behind. Ukwuachu said during the trial that he and the woman had consensual sex that evening with him on top and them lying face-to-face on his bed, and that he never forced himself on her.
The trial also included testimony from Ukwuachu's former girlfriend at Boise State who said that Ukwuachu, who played football there before transferring to Baylor, had been physically violent with her, having punched her more than once and choked her during an argument. Ukwuachu also denied those allegations, and his opposition to the use of that testimony is another one of the arguments now pending before the 10th Court of Appeals.