WACO, Texas (CN) – A Texas appeals court reversed the sexual-assault conviction of a former Baylor University football player and ordered a retrial, finding that text messages sent just prior to the alleged offense were improperly excluded the first time around.
Sam Ukwuachu, a 2013 transfer from Boise State University, had been convicted of sexual assault against a Baylor women’s soccer player in August 2015 in McLennan County Court. He was sentenced to six months in jail, 10 years probation and 400 hours of community service.
The case was part of a sexual assault scandal that rocked Baylor, leading to the firing of football coach Art Briles and the exit of university president Ken Starr. The university has been accused of acting deliberately indifferent to dozens of incidents of sexual harassment and assault within the football program.
Baylor later hired a law firm for an internal audit of its Title IX compliance. The audit confirmed widespread rape and domestic violence within the university’s football program due to its “sexually hostile” policies.
In Wednesday’s ruling overturning Ukwuachu’s conviction, 10th Court of Appeals Chief Justice Tom Gray addressed various issues cited in his appeal. Most critical to the decision, however, was the issue that certain text messages between the alleged victim and a friend on the night of the incident had been excluded by the trial court.
The trial court did admit a series of messages between the woman and that same friend that took place shortly after the offense, but Ukwuachu sought to have the entire series of messages admitted into evidence to support his defense that she consented to sexual intercourse.
Following a hearing, the trial court found that the messages prior to the offense were not admissible based on Rule 412 of the Rules of Evidence. It also found that the entire series of messages did not constitute one conversation.
Rule 412 applies in prosecutions involving sexual assault and aggravated sexual assault. Section “a” of the rule prohibits opinion or reputation evidence of the past sexual behavior of an alleged victim in such prosecutions.
But section “b” of the rule allows evidence of specific instances of past sexual behavior to be admitted under certain conditions. This means that if the evidence falls within any of the exceptions and its probative value outweighs the danger of unfair prejudice, it is admissible, according to the ruling.
“In this case, the text messages were made immediately prior to the offense and appeared to potentially relate to prior occasions where the victim and Ukwuachu had engaged in some type of sexual conduct. We find that the messages in question would fall within the exception listed in Rule 412(2)(B) because the evidence ‘concerns past sexual behavior with the defendant and is offered by the defendant to prove consent,’” Justice Gray wrote.
The appeals court also questioned whether the trial court performed the required balancing test of the disputed text messages and weighed their probative value against the danger of unfair prejudice.
“Our review of the messages in question demonstrates that the probative value of the messages outweighed any unfair prejudice,” the ruling states. “The messages were probative on the issue of consent and were not particularly graphic nor did they paint the victim in a negative light. We find that Ukwuachu met his burden to demonstrate that the probative value outweighed the danger of unfair prejudice, and the trial court abused its discretion in finding otherwise.”
The 10th Court of Appeals also disagreed with the trial court’s claim that the entire series of text messages was not a single conversation. It found that the messages were part of an ongoing conversation based on state rules of evidence.
“The text messages in question started when the victim was letting her friend know that she and Ukwuachu were not coming to a Homecoming party and continued during the time the victim was in Ukwuachu’s apartment,” Gray wrote. “There was a short break in the messages during the time that the victim stated that the offense occurred and resumed almost immediately thereafter, resulting in the message that the state introduced during the victim’s testimony where she texted her friend that Ukwuachu had ‘basically raped [her].’”
The appeals court ordered a new trial, concluding that the exclusion of the text messages in question harmed Ukwuachu’s defense.
“We find that because consent was the central issue in the proceeding, we cannot say that we have a fair assurance that the erroneous exclusion of the text messages did not affect the outcome of this proceeding, especially when considered with the other alleged errors in the trial of this cause,” Gray wrote.
McLennan County District Attorney Abel Reyna plans to appeal the ruling to the Texas Court of Criminal Appeals, according to the Dallas Morning News.
“We will continue to fight on behalf of our victim and her family,” he said in a statement released Thursday.