2015 WL 4910958
NMCCA2015Background
- Appellant Alonzo Bass III, an E-5 Sailor, was convicted at a general court-martial of multiple sexual offenses against two shipmates aboard USS JOHN C. STENNIS; convictions included two specifications of sodomy (oral and anal) and other sexual-contact and harassment offenses.
- The sodomy specifications charged forcible sodomy ("by force and without consent"). The members acquitted forcible sodomy but convicted on non‑forcible sodomy (lesser‑included) theories.
- The military judge instructed the members, without objection, that non‑forcible sodomy was a lesser included offense of forcible sodomy and that a Marcum factor (e.g., unique military interest) could render otherwise consensual sodomy criminal.
- Appellant challenged multiple trial rulings on appeal; the court found error primarily in instructing and convicting on non‑forcible sodomy where essential Marcum factors beyond force/consent were not pleaded or tried.
- The court set aside the findings and dismissed Charge III (the sodomy charge) and its specifications, set aside the sentence, and authorized a sentence rehearing; remaining convictions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non‑forcible sodomy is a lesser‑included offense (LIO) of forcible sodomy | Non‑forcible sodomy is an LIO because its elements (unnatural carnal copulation) are subsumed by forcible sodomy | The court should not instruct an LIO when Marcum factors (additional facts) necessary to criminalize non‑forcible sodomy were not pleaded or proven | Court held error: non‑forcible sodomy is not an LIO unless applicable Marcum factors beyond force/consent are alleged and proved; convictions for non‑forcible sodomy set aside |
| Whether appellant had constitutionally adequate notice of the criminal theory for non‑forcible sodomy | Government: situs (aboard ship) or trial record supplied notice of Marcum factors (unique military interest) | Appellant: specifications only alleged force/without consent; no notice of other Marcum factors; defense focused on force/consent | Held for appellant: no notice in charging document or trial emphasis of other Marcum factors; prejudice found |
| Whether charged sexual misconduct may be used under Mil. R. Evid. 413 as propensity evidence | Government: M.R.E. 413 permits admission of other sexual‑offense evidence, charged or uncharged, subject to M.R.E. 403 balancing and spillover instructions | Appellant: allowing charged misconduct to prove propensity creates constitutional problems and risk of impermissible spillover | Court upheld admission: M.R.E. 413 applies to charged misconduct; military judge did appropriate Wright/403 balancing and gave adequate spillover instructions |
| Whether rebuttal argument and other prosecutor statements constituted prejudicial prosecutorial misconduct | Appellant: prosecutor accused defense of victim‑blaming, misstated evidence, offered personal opinion and improperly bolstered witness credibility | Government: comments were responsive to defense argument, limited to rebuttal, and curative instruction addressed issues | Court held no prejudicial error: remarks were not plainly erroneous or abusive; curative instruction and strength of case mitigated any potential prejudice |
Key Cases Cited
- United States v. Tunstall, 72 M.J. 191 (C.A.A.F.) (elements test for lesser‑included offenses)
- United States v. Girouard, 70 M.J. 5 (C.A.A.F.) (plain‑error review and LIO analysis)
- United States v. Castellano, 72 M.J. 217 (C.A.A.F.) (Marcum factors must be determined by the factfinder for sodomy)
- United States v. Marcum, 60 M.J. 198 (C.A.A.F.) (Marcum factors list for constitutionality of Article 125 as applied)
- In re Winship, 397 U.S. 358 (U.S.) (Due Process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S.) (facts increasing punishment or required for conviction are the functional equivalent of elements)
- United States v. Wright, 53 M.J. 476 (C.A.A.F.) (M.R.E. 413 admissibility and balancing framework)
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F.) (standards for prosecutorial misconduct review)
- United States v. Wilkins, 71 M.J. 410 (C.A.A.F.) (prejudice test for notice of unpleaded elements)
- United States v. Buber, 62 M.J. 476 (C.A.A.F.) (when sentence reassessment is inappropriate due to dramatic change in penalty landscape)