76 M.J. 862
USCG CCA2017Background
- Appellant was tried by special court-martial (military judge alone) and convicted, contrary to pleas, of one specification of abusive sexual contact under Article 120, UCMJ.
- Sentence: reduction to E-1, 30 days confinement, and a bad-conduct discharge; approved by the Convening Authority.
- The charged specification alleged Appellant “pulled down the shorts and underwear of [NP] with his hands, exposing [NP]’s buttocks, when the accused knew or reasonably should have known that [she] was asleep.”
- Article 120(g)(2) defines sexual contact to include touching, either directly or through clothing, of the buttocks or any body part with a proscribed intent.
- Appellant moved to dismiss the specification at trial for failure to state an offense; the military judge denied the motion. On appeal, the court considered whether the specification sufficiently alleged a touching and intent.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| 1. Does the specification state an offense by alleging the requisite touching? | Specification necessarily implies a touching (pulling down shorts/underwear exposed buttocks) and thus states the offense. | The specification adequately describes the conduct; trial should have decided factual questions. | Specification fails to allege any touching; dismissal required. |
| 2. Is the evidence legally and factually sufficient to prove Appellant knew or should have known NP was asleep? | Evidence established NP was asleep when contact occurred. | Evidence was sufficient to support conviction. | Not reached (court did not decide because specification dismissed). |
Key Cases Cited
- United States v. Crafter, 64 M.J. 209 (C.A.A.F. 2006) (specification sufficiency may be found by express allegation or necessary implication)
- United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (narrow review of specification sufficiency when motion to dismiss raised at trial; erroneous denial may require dismissal)
- United States v. Mayo, 12 M.J. 286 (C.M.A. 1982) (specification sufficient if necessary facts appear in any form or by fair construction)