Naval Academy Midshipman 3rd Class Nixon Keago has been found not guilty of attempted sexual assault, stemming from a September 2018 incident.
Keago, who is currently standing trial, still faces several charges including sexual assault, attempted sexual assault, obstruction of justice and burglary.
Defense attorney Lt. Dan Phipps motioned Monday morning for the attempted sexual assault charge and one of the burglary charges, both connected to September 2018, be dismissed.
In arguing for the charges to be dropped, Phipps said that the prosecution, represented by attorneys Lt. Cmdr. Paul LaPlante, Lt. Cmdr. Chris Cox and Lt. Josh Won, did not prove that there was an overt action that shows that Keago intended to commit sexual assault.
He pointed to the government calling only one witness to testify about the night.
An ensign testified Wednesday that she woke up to find Keago in her bed. It was the second time the midshipman was in her bed. This time they were both clothed, she said.
The Capital does not identify victims of sexual violence.
The ensign had not invited Keago into her bed, she said.
The lack of invitation and other evidence of Keago’s alleged pattern of conduct show that he planned to commit sexual assault, LaPlante argued Monday morning.
Even with the ensign and Keago still clothed, there was a substantial act because he went into her room uninvited, LaPlante said.
Judge Capt. Aaron Rugh did not agree. He granted the defense motion to find Keago not guilty of attempted sexual assault.
Rugh denied the motion to find Keago not guilty of burglary, saying there was enough evidence provided for the members, the court-martial equivalent of a jury, to find Keago guilty.
The defense began and rested its case Monday. Keago did not testify as part of the defense’s case.
The defense’s case, as outlined in Lt. Cmdr. Andrea Kissner’s opening statements, was that the charges against Keago were the result of rumors and a poor investigation by the Naval Criminal Investigative Service.
The defense called the two NCIS special agents who handled the investigations into Keago investigations. Through his questioning, Phipps pointed out lapses in their investigations, highlighting delays in interviews and evidence collection.
Neither of the two special agents were able to collect video surveillance of the bars where the victims had gone the night of their alleged sexual assault or attempted sexual assault.
One of the agents, Christin Curington, went to Federal House Bar, where the first midshipman to report Keago’s actions was the night of her alleged assault, to get video. However, she could not get a copy, and even if she had, the quality was too low, she testified.
Curington could not identify the midshipman in the video, she said.
NCIS also tried to get video from the Mean Fiddler, but the agent was told the video had been overwritten, another NCIS special agent said. Defense attorneys were able to get a copy of the video, which they played last week.
There were delays in asking for the videos, as well as logs, the two NCIS special agents testified, and, in most cases, the evidence they requested no longer existed.
Phipps, through his questioning, also pointed out concerns with the special agents not asking questions about discrepancies in statements.
The investigations were of special interest to the NCIS director, which meant the agents were required to send reports to the director and had additional people reviewing their work, they testified.
The defense also called two witnesses to demonstrate the connections between the ensign and the midshipmen, as well as the rumors spreading around the Naval Academy.
Lt. Anthony Spicher testified that the ensign and the last midshipman to report were on the same yard patrol boat during New York Fleet Week. They were also on the same team and watch team, Spicher said.
Keago, despite witness testimony from previous days of the court-martial saying he was on the boat, was not assigned to the yard patrol.
Ensign Sean Lennon testified that he was interviewed by NCIS. While he was in the waiting room to be interviewed, he spoke with the ensign, who would make her own sexual assault report while talking to NCIS.
Lennon was not sure why he was interviewed. While talking to the other ensign in the waiting room, the ensign told him the gravity of the situation, that it involved sexual assault, he testified. He had heard rumors that Keago was in the room of the first midshipman who said she was assaulted by him and that she had come out screaming.
In all, the defense’s case lasted less than 2.5 hours, considering the court recessed for five to 10 minutes each time a witness left the stand.
The government declined to put on a case in rebuttal to the defense’s.
The defense and government attorneys will make closing statements Tuesday morning. Rugh will also give the members instructions before they are sent to deliberate.