United States v. Laster
201600048
| N.M.C.C.A. | Jan 27, 2017Background
- Appellant, tried by a general court-martial with enlisted representation, was convicted of three specifications of sexual abuse of a child (Article 120b) and one specification of indecent conduct (Article 134); sentence: 3 years confinement, forfeitures, reduction to E-1, dishonorable discharge; convening authority approved.
- Offenses occurred during appellant’s leave visiting his father’s rural Oklahoma high school in Dec 2013; victims were high-school females aged 14–17; conduct included foot/hand contact under a library table, sexual text messages, solicitation of nude photos, and a nighttime encounter at a lake where one victim alleged kissing, fondling, and placement of her hand on appellant’s penis.
- One charge of rape of a child (penetration) resulted in acquittal; two specifications alleging enticement to create child pornography were conditionally dismissed by the military judge after findings.
- At trial, Specification 3 of Charge II (indecent conduct) was narrowed by the military judge to indecent language only ("Nine and a half inches all for you, baby") rather than the attached photo; the judge instructed members on indecent language using community-standards and context-based definitions.
- On appeal the appellant raised four assignments of error: legal and factual insufficiency of (1) indecent conduct conviction (Katherine), (2) sexual abuse of Dede on divers occasions, (3) sexual abuse of Jamie on divers occasions, and (4) alleged erroneous findings instruction by the military judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Legal & factual sufficiency of indecent language (Katherine) | Appellant: language was not legally indecent (relies on Johnston) | Government: context (solicitation, unsolicited photo, age, prior conduct) made phrase indecent | Conviction affirmed; language indecent when judged in context |
| 2. Legal & factual sufficiency of lewd acts on divers occasions (Dede) | Appellant: acquittal on related rape shows members disbelieved physical encounter; only texts proved | Government: separate offenses may be supported by same evidence; lake encounter + texts suffice | Conviction affirmed; evidence supports lewd acts both at lake and by texts |
| 3. Legal & factual sufficiency of lewd acts on divers occasions (Jamie) | Appellant: conduct not sufficiently lewd | Government: foot rubbing was sexual contact with intent; sexual requests and invitations were indecent language | Conviction affirmed; touching and messages support lewd acts |
| 4. Alleged erroneous findings instruction | Appellant: judge’s instruction wording ("if...firmly convinced") was plain error | Government: instruction upheld under precedent | AOE rejected summarily; no reversible error |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (de novo review standard for legal and factual sufficiency)
- United States v. Day, 66 M.J. 172 (C.A.A.F. 2008) (legal sufficiency test)
- United States v. Rankin, 63 M.J. 552 (N-M. Ct. Crim. App. 2006) (factual sufficiency standard explained)
- United States v. Johnston, 75 M.J. 563 (N-M. Ct. Crim. App. 2016) (analysis of indecent exposure under Article 120c relied on by appellant)
- United States v. Green, 68 M.J. 266 (C.A.A.F. 2010) (must examine entire record to assess indecent language)
- Dunn v. United States, 284 U.S. 390 (U.S. 1932) (inconsistent verdicts do not mandate reversal)