*1 STATES, Appellee, UNITED
Bobby II, Basic, BAKER D. Airman Force, Appellant.
U.S. Air
No. 01-0064/AF.
Crim.App. No. 34069. Appeals
U.S. Court
the Armed Forces. 1,May
Argued 2002. Sept.
Decided
SULLIVAN, S.J., opinion delivered the Court, EFFRON, GIERKE JJ., C.J., joined. CRAWFORD, and BAK- ER, J., dissenting opinion. filed a each Appellant: Captain For Patrick J. Dolan (argued); Beverly Lieutenant Colonel B. Knott, Timothy Lieutenant Colonel W. Mur- (on brief); phy R. Colonel James Wise. Appellee: (argued); For Linette I. Romer Datillo, Major Anthony P. Colonel Lance B. (on brief). Sigmon Judge Senior delivered the SULLIVAN opinion the Court. (E-l) II,
Bobby Baker an Airman Basic Force, States Air tried general composed court-martial of officer and January enlisted members at the (RAF), Mildenhall, Royal Air Force Base Kingdom. entering After mixed merits, pleas a trial he was found specifications failing obey two officer, superior larceny of a order exchange, sodomy, committing base indecent acts with a female 92, 121, in violation of Articles Code of Justice Uniform *2 you’ve heard on you and (UCMJ), the evidence §§ 925 and 934. 10 USC 482-83). (R. of what’s indecent.” appellant to a bad- issue sentenced The members days, for discharge, confinement conduct view, general instruction was this our On pay of all and allowances. and forfeiture clearly inadequate guidance the members for authority ap- April convening indecency to decide the issue and, August proved sentence on Strode, Pier- supra, and lant’s conduct. Appeals Air Force Court Criminal son, supra. guilty summarily findings of and affirmed the unpublished opinion. in an sentence FACTS petition initially granted appellant’s We Bobby record that Evidence shows whether the evidence review to determine Kingdom in Baker born was legally one of the was sufficient sustain citizen, he en- January An American 1981. committing findings indecent 1998. An- Force in December listed 16). age a female acts with schools, training and he After service recruit issue, argument hearing on this After Mildenhall, Kingdom, arrived at RAF specified and heard additional oral ar- Court assigned was duties in Person- gument following issue: 343). (R. (MPF) April Flight nel 1999. PLAIN ERROR OC- WHETHER friendly He with a number became WHERE THE MILITARY CURRED younger Among on dependents the base. FAILED JUDGE TO GIVE TAILORED “KAS,” 15-year-old dependents those was TO THE MEMBERS INSTRUCTIONS girl who hire in MPF. worked as summer TO DETERMINE ON HOW CONDUCT (R. 248-249). REQUESTED INDECENT WHEN WAS old, KAS, years Appellant, then 18 BY THOSE MEMBERS. began during the dating summer of 1999. now hold com We (R. 252). Appellant aware that was she provide failed to mitted when she only years old because her brother so adequately tailored on instructions the issue (R. 264-265). The relation- informed him. indecency after court-martial member ship quickly physical. between them became Accordingly, asked for such instructions. we (R. 250). they were KAS testified that while appellant’s set aside conviction for commit dating, appellant touched her breasts and ting acts indecent with a female under the (R. 250-251). gave He also kissed them. of 16. See United States chest, stomach, upper her on her hickies State, MJ 29 Pierson v. 956 P.2d (R. 250). back. (Wyo.1998); generally United see any activity, There no evidence 142, 145 Eckhoff, beyond place hugging kissing, took mere Specifically, pursuant in a Arti- session Furthermore, public. KAS testified that 39(a), UCMJ, 839(a), § cle after USC her, activity upon not force this did began, spe- deliberations a member asked a activity did not find offen- that she question acts: “... cific about comported her ideas of sive because with ‘... Should we should we not consider boyfriend/girlfriend normal within a activities experience, [appellant’s] prior (R. dating relationship. ’ ... proximity contact with During argument findings, the assis- his days tant trial counsel made several references to per were indecent re- [KAS] the acts and KAS’ difference between (3)—‘that quirement [appellant] the acts ” instance, age. closing argument For his were indecent.’ answered this findings, the assistant trial counsel made general instruction following assertion: you’re dealing the other offense “when issue], final is with [the [KAS]. we don’t Now the element Now, here, my specifically talk about that. But instruc- are a lot there of definitions you but a of them are the same as one tion to should consider lot [that] previous charges.1 gratify one lust. take a his And let’s look at notice, thing you have to is the definition of this definition that counsel [defense] “a It’s harped child.” someone under the signify on. “Indecent [sic] acts” testify [KAS] Now heard immorality relating that form of to sexual [appellant] kissed her breasts. And a cou- impurity grossly vulgar, which is not *3 times, ple they dating, when were he obscene, repugnant propri- to common Now, touched her breasts with his hands. ety—and here’s the rest the definition— him touching this involved them under her deprave but tends to excite lust and morals Now, [appellant] shirt and bra. what does with respect to sexual relations. Can an— say? says thing again. He the same He year IS^year [sic] old on a old [sic]— says, put “I did several hickies [KAS’s] that 15^year old is considered a child. chest, upper breasts,”—again not her 15-year That old an Air [sic] is Force Agent put Kieffer’s addition there—“and I dependent. It’s obvious—an inference them on stomach her and her back.” And facts, it the is that he did to excite his you testimony heard hickies were all that, you lust and no matter how look at over her back. So he touched her breasts it, is indecent acts with child. You’re he kissed sucked her skin with his obligated facts, the the law and as follow mouth. you, the has instructed and that’s (R. 453-454). what the show.
Now, potential warning one here. These facts are, show, two as elements close in Responding argument, to this the defense age. Now, He was 18 and she was 15. urged counsel to consider all, you anything first of do in see ages relative and KAS and not that it elements would show matters find the sexual contact between them to be No, age? two are in these close be- (See 441, 442). per R. se. cause anything there isn’t like that. All offense, In her instruction on the mili- requires recipient crime is that the tary judge provided with the members act the indecent under Judges’ elements as set forth and in this case was 15. [KAS] Dept, Army Pamphlet Benchbook. Now, when is under 30, 1996)(“Benchbook”)(R. 421) (Sept. 27-9 they means that can’t consent them- prejudicial good She then defined conduct selves. don’t So be deceived the fact discipline order discrediting, and service things let him do [KAS] these some using also the definitions from the Bench- boyfriend-girlfriend kind relationship. Finally, indecency book. she defined Consent is not an element. It’s irrelevant. following language from the Benchbook: groped He her naked breasts with his signify Indecent acts that form of immo- body. hands. He kissed her naked She’s rality relating impurity to sexual which is child, that’s indecent with a acts obscene, only grossly vulgar, not (R. and re- you no matter how look it. 434- pugnant propriety, common but tends to deprave excite lust and the morals with Later, rebuttal, trial the assistant coun- (R. 421). respect to sexual relations. sel contended: See id. at d. 3-87-1 Now, you you look at the elements and deliberations, Now, During they’re clearly their member sent [that] see all met. regard with you say how can groping someone’s particular, the definition “indecent.” breasts under their bra is an indecent act following question gratify with the intent to his lust. member asked the That’s laughable regard specification alleging think do he would this and attempting touch her breasts without indecent act with KAS: Appellant charged committing guilty was also found not of this offense. indecent assault on a He second female. you my should Specification 1—In But instruction For UCMJ instructions, says 4 it consider page bottom of what’s inde- you’ve heard on the issue ‘You consider accused’s----” should cent. Charge Specification However UCMJ to!) 482-483). (or (R. “[ap- says it never Charge ...” age,
pellant’s] departed more to then once The members 125, Specification or should we 1. Should we they 30 minutes later than deliberate. Less “... education not consider accused’s alia, to, finding com- inter returned a prox- experience, prior contact KAS, a female under mitting indecent acts on days imity to 17 of 16. with [KAS] Judge’s Instruction Adequacy (3)—“that per requirement were indecent *4 [appellant] were indecent of is this case whether Our concern military judge appropriately instructed the military gave a the ram- on appellant’s of court-martial bling confusing of the member’s view person with a of indecent acts in- gave then a sentence question and one 51(c), age of 16. Article under See struction: 851(c) 920(a), UCMJ, § and R.C.M. 10 USC question] has to do [member The first Courts-Martial, United States Manual for with the 125—that’s forcible UCMJ (2000 ed.).3 means Appropriate instructions sodomy. It to that in terms of the ties necessary for the members those instructions question had to with instruction on do concerning intelligent to arrive at decision 4, basically page of which bottom v. appellant’s guilt. See States “You should also consider the ac- reads: (CMA 1975); McGee, 193, 1 MJ 194 experience, prior cused’s (CMA 1975); Gaiter, 54, v. 1 MJ 56 States [CAB],2 contact with nature (CMA Graves, 50, v. 1 MJ 53 United States [appellant] conversations between 1975). intelligent An or on rational decision [CAB], along with the evidence on other person’s guilt requires a of the consideration goes this issue.” Then the offense, charged elements of 134, Charge about in the under the UCMJ elements, pertaining applicable those 2, Specification which is the indecent acts principles necessary to decide the law child, [KAS], has to with a do Smith, 50 MJ case. See [appellant’s] age consider ed- Rowe, v. 11 455 United States ucation, her, experience, prior contact 1981). (CMA In the MJ proximity age wheth- justice system, it is the who indecent, required by er acts were required par to tailor the instructions element [of offense]. third facts and issues a case. See United ticular Specifically why page we outline this (CMA Jackson, 261, 263 n. is, specifically ap- that is addressed and Groce, 1979); United States fact, plies the issue of mistake 370-71 mistakenly, whether the accused was hon- estly, and reasonable—his belief there initially light, In this we note that sodomy—forcible to the sod- consent person age of acts with a under the omy. we are the So outline—these cir- specifically proscribed 16 not as one of you ought cumstances through enumerated offenses Articles weighing prior that—the contact and UCMJ, §§ The Code 10 USC 877-993. things. those expressly prohibits be sexual intercourse person military person under you’re dealing [indecent tween a Now UCMJ, 120(b), acts], age of 16. Article specifically we don’t talk about that. provisions alleged charged 3. Manual cited are identical 2. victim of the forcible sod- All in effect at the time of court- those omy offense. martial. 920(b). Brown, 457, 461, 13 §USC Consent not an element of USCMA CMR offense, act Knowles, of intercourse 17. 15 USC Cf. proven (1965) (hold need be in addition to the the MA 35 CMR para. victim and her marital status. See ing military offense of acts with a 45b(2), IV, Manual, swpra. Part The Uni- victim). presence child must be done prohibits sodomy regardless form also Code 87b(l), IV, Manual, Paragraph supra, Part partici- of the and marital status of the delineates elements of this offense with 125, UCMJ, pants. § Article USC respect physical contact between service Again, consent is not an element of- person person years and a old. under fense, although the President has made it a These elements are 51e, sentence para. enhancement factor. See b. Elements. IV, Manual, supra. Otherwise, Part the Uni- (1) Physical contact. form Code Justice not ex- does (a) That the accused committed pressly activity sexual address between a upon act certain with the person person years service under 16 body person; aof certain old. (b) That the spouse Military law, however, recognized has accused; offense “indecent acts or liberties with (c) act That the the accused was may prosecuted a child” at court-martial *5 indecent; discredit, disorder, as a service or (d) That the accused committed the 134, UCMJ, § Article 10 USC arouse, appeal act intent to with IV, Manual, para. supra. Part This to, lust, gratify passions, or Brown, long ago Court in United States v. accused, or of sexual desires victim, both; (1953) or and recognized USCMA CMR (e) That, circumstances, under the being this offense as modeled on District of the conduct of the accused was (1948).4 § Columbia Code Ann. 22 We good prejudice to the of order said: discipline and in the armed purpose type legisla- The evident of this of forces was of a nature to protect tion is to children under a certain bring upon discredit the armed forces. age from acts tendency those which have a morals, corrupt to many their and if the added). (emphasis Id. possible variations which it to is take explained The President has further indecent liberties with a child are restrict- “[l]ack of consent the child to act or ed those founded on assault bat- offense; conduct is not essential this con- tery, many debasing then acts which are 87c(l), Paragraph sent not a is defense.” detrimental to the morals of a minor are IV, Manual, supra. Part proscribed. specified
The
issue
this case asks wheth-
military
er
judge plainly
by failing
erred
necessity
for the
throw
law was to
a
give
tailored instructions to the members
protection
of
cloak
around minors
regarding how to determine whether
discourage
perform-
sexual
deviates
lant’s conduct
for purposes
was indecent
with,
ing
Assuredly,
or before them.
our
charged
offense. We note
this case
interpretation is not inconsistent
that, before the members started deliberat-
remedy
evil, any,
need. The
for the
is to
ing,
military judge gave
provide
standard
punishment
substantial
for those
perform
on
Benchbook instruction
the elements
who
indecent and immoral acts
shame, embarrassment,
offense
acts
Bench-
which cause
of indecent
with child.
(R. 420)
book,
children,
Moreover,
supra
humiliation
or lead them fur-
3-87-2.
time,
delinquency.
gave
ther down the road to
she also
the standard
States,
(D.C.1999)
4. To understand the
evolution
D.C.Code Ann.
and Allison v. United
E.F.,
(D.C.Cir.1969).
§22
see In
re
740 A.2d
F.2d
“age
holding,
meaning
in-
this Court observed
instruction
Benchbook
prove
act
the elements
decency
purposes of this offense.
relevant
for the
service-discrediting.” Id.
However,
requested par-
had
was indecent
after a member
it clear
this Court made
impact
age
at 32.
on the
ticular instructions
held,
rule.
Court
indecency,
per
is no
se
This
that there
matters on
issue
related
magic
demarcation be-
is no
line of
merely
“you
“there
stated
should consider
she
indecent acts based
acts and
you’ve heard on tween decent
482-483)
(R.
Id.
partner.”
of the sex
precisely on the
the issue what’s indecent.”
Here,
suggested
below,
clearly
trial counsel
assistant
As
this instruction was
noted
contrary
se
Strode
per
intelli- members a
rale
permit
the members to
insufficient
case,
express-
military judge failed to
and the
gently decide this unusual case.
Cf.
Tindoll,
194, 195-96,
Vasquez,
ly repudiate
States v.
it.
16 USCMA
Cf.
indecency
(1966)(holding
CMR
351-52
sufficient to
instructions
determine
held that all
This
also has never
Court
child).
especially
This
true
acts with
person
between a service
sexual conduct
light
this Court’s recent case law address-
under the
of 16 is indecent
ing
impact
charged
crime
alleged
legally incapa-
because the
victim
su-
child. See
consenting to
See also 18
ble of
sexual acts.
pra.
120(b),
§§ 2242'
Article
USC
cf
trial,
depending
coupled
law of
varies
UCMJ. The
consent
The evidence
record
the nature of the sexual act
arguments,
trial counsel’s
assistant
questions
jurisdiction
con-
in which it was committed. See
several critical
of law
raised
cerning appellant’s guilt
generally
of-
Richard A. Posner and Katharine
First,
Silbaugh,
B.
A Guide to American Sex Laws
of indecent acts with
child.
fense
(1996). Moreover,
44-64
the consensual sex-
must his sexual conduct with KAS be consid-
*6
(touching
per
per-
alleged
se
a
acts
in
case
ered
indecent because she was
ual
Second,
KAS),
kissing
body
age
his
of
would
son under the
of 16?
must
breasts and
law
per
sexual
considered
not be criminal under federal civilian
conduct
KAS be
alleged
age
purportedly
se
she
had not
over
indecent because
because the
victim was
age
years younger
less
four
legal
reached the
of consent for such
of 12 and was
than
Third,
§§
assuming appellant’s
appellant.
sexual
than
See
USC
conduct?
2246(3)(2002).
2243(a),
generally
year
per
with 15
old
was
se
See
conduct
KAS
not
(A.F.Ct.
Pullen,
grounds,
on either of the above
can
41 MJ
indecent
States
in
part
ap-
Crim.App.1995). Again,
of
we note
evidence
factual consent
case,
determining
military judge
in
not cor-
pellant’s
be considered
the inde-
did
KAS
cency
appellant’s
trial counsel’s mis-
conduct?
rect either the assistant
which was
statement of the law of consent
This Court has never held that all sexual
unsupported by any
in the record.
person
per-
a
a
conduct between
service
Vasquez, supra.
See
age
per
son
indecent
under the
16 is
se
Finally,
never
that the
a
Federal civilian
this Court has
held
and therefore
crime.5
prohibit
alleged
victim
criminal law
not
all
factual consent
was
does
sexual
a
person
age
a
See 18 irrelevant
whether
service
16.
(2002). Moreover,
a child.
person
guilty
§§ 2241-2248
of indecent acts with
USC
Strode,
32-33,
legal
provided
support
held that
whatsoever was
43 MJ at
this Court
No
a
22-year-old
guilty plea
by
a
inde-
trial counsel
such
broad
airman’s
assistant
appeal, government appellate
13-year-old girl
improv-
cent acts with a
was
assertion. On
87(c),
summarily
paragraph
thought
relies on
because he asserted that he
counsel
ident
IV, Manual,
principle
for this
supra,
old.
Id. In so Part
she was
least
French,
illicit
See United States
MJ
We have held that
the solicitation of
activity
stepfather
between a
and his
sexual
language.
year
stepdaughter
old
Furthermore,
provision
law.
this Manual
states
are
we
not convinced that
required
that the Government is not
by
misstatements
law
the assistant
prove the lack of
consent
the child to trial
by
counsel were corrected
the standard
secure a conviction of this offense and the
given by
judge.
instructions
trial
See
rely
defense cannot
on the consent of the
Tindoll, supra.
generally
Standard instruc-
alleged
as a
victim
It is
defense.
silent as to
Tindoll,
approved
tions
were
but that was
the factual consent of the victim a
age
person,
case where the
of the service
may be
indecency.
considered on the issue of
who was found
indecent acts with
law, however, unequivocally
case
Our
holds
kissing
child for
a female under the
that all the facts and
of a
circumstances
case
Tindoll,
addition,
was not
In
discussed.
consent,
including
alleged
victim’s
must
heavily
Annal,
relied
on United States v.
indecency question.
be
considered
USCMA
337
733,
1770;
v.
Air
113 S.Ct.
Johnson
States
507 U.S. at
The decision of
United
464,
1019,
Zerbst,
458,
58
82
U.S.
S.Ct.
Appeals is
304
reversed
Force Court Criminal
(1938)).
I
1461
Charge
2 of
and the L.Ed.
Specification
as to
findings
The
to that
sentence.
“plain”
it
“obvious” or
An
is
is
error
specification
are
and the sentence
Olano, 507
law.”
U.S.
“clear
current
respects
In
the decision
set aside.
all other
734,
may
An
be said
1770.
error
at
113 S.Ct.
is
The record
trial
below is affirmed.
“plain” when the settled law of the
Judge
to the
Advocate General
returned
manifests that
Supreme
this Court
Court
the Air Force for remand to
Court
place. See
error has taken
United
an
Appeals,
may
order a
Criminal
rehear-
(4th
Promise,
150, 160
Cir.
v.
255 F.3d
ing
may
specifica-
or it
the affected
dismiss
2001)(en banc).
way,
another
an error
“Put
tion and reassess the sentence based on
egregious
obvious’
‘plain’ if it is ‘so
is
remaining findings
guilty.
prosecutor would be
that a trial
permitting it in a trial held to
‘derelict’
CRAWFORD,
(dissenting):
Judge
Chief
Thomas, 274
day.”
States v.
F.3d
655,
(2d Cir.2001)(citing
v.
United States
case,
If
it
was error
this
there
(2d Cir.1998)).
34,
Gore,
Al
154 F.3d
error. The test for
error is set
“plain”
though
may not
the error
have been
Olano,
725,
v.
forth in
United States
U.S.
proceeding,
the court-martial
at the time of
S.Ct.
123 L.Ed.2d
“plain” at
sufficient if the
becomes
error
Johnson United
modified
States,
clarified
appellate
the time of
consideration. See
1544, 137
117 S.Ct.
U.S.
Johnson,
468, 117
520 U.S. at
S.Ct.
(1997):
L.Ed.2d 718
an
can
an
appellate
[B]efore
court
correct
prong
of the Olano test asks
third
(1)
trial,
at
error
raised
there must be
error affected
obvious
(2)
(3)
error,
plain,
affects
An
rights.
lant’s
error that af-
substantial
rights.
If
substantial
all three conditions
rights is one that is materi-
fects substantial
met,
may
appellate
exer-
are
court
then
ally
prejudicial.
Chapa,
See United States
er-
cise its discretion
notice
forfeited
Olano,
see also
plain
analysis
appellate
concerning
specification alleg-
error
court
and
error,
remedy
plain
ing
sodomy
Initially,
has
discretion to
forcible
with CB.
‘seriously military judge
“but
in cases where the error
had instructed the members
fairness, integrity
public per
affects the
if appellant
or
had an honest and mistaken
”
judicial
ception of
proceedings.’
belief that CB
to the act of sod-
consented
Castillo-Casiano,
787,
omy,
sodomy,
States v.
F.3d
198
790
he was not
of forcible
(9th
Johnson,
Cir.1999)(quoting
provided appellant’s
520
U.S.
belief was reasonable.
469-70,
finding
117
determining
appellant
S.Ct.
A
In
whether or not
reversal;
permits
reasonably
consent,
“even the
clearest
mistaken about CB’s
requires
military judge
blunders never
reversal.” United
instructed:
also
“You should
(7th
Patterson,
912,
education,
age,
241 F.3d
experi-
913
consider the accused’s
Cir.2001);
Cotton,
ence,
[CB],
prior
United States
261 F.3d
contact with
the nature of
(4th
397,
Cir.2001)(Wilkinson, C.J.,
any
con
conversations between the accused and
curring
part
dissenting
part).
and
in
In
along with
other
[CB]
evidence on this
short,
appellate
only given
court does not
This
notice
issue.”
instruction was
remedy plain
objection,1
proper
error unless and until that er without
but also was
justice
miscarriage
light
ror
in a
of the contest
results
over whether
not CB
seriously
fairness,
integrity,
affects
consented to
sexual conduct.
public perception
proceedings.
part
question
second
members’
Rios-Quintero,
204 F.3d
members,
was whether or not the
fact-
as
(5th
Cir.2000);
see also United
finders,
appellant’s age,
were also to consider
(4th
Johnson,
States v.
219 F.3d
education, experience,
prior
conduct
Cir.2000).
(to
any
KAS
include the nature of
conversa-
KAS),
appellant
along
tions between
weighing
prong,
this fourth
we are re
proximity
(e.g.,
other evidence
quired
quality
to look at
quan
both
ages)
their
whether or not
tity of' evidence
well
as
determine
appellant’s conduct with KAS was “indecent.”
“sandbagging”
by forgoing
timely objection
Government
discussing
proposed
After
answer with
that,
unsuccessful, might
in a
result
differ
39(a),
pursuant
counsel in session
to Article
ent
Supreme
standard
review.
“[T]he
(UCMJ),
Uniform Code
Justice
again emphasized
Court has time and
839(a),
objection,
§
receiving
USC
no
preventing sandbagging
critically impor
reconvening the court with the members
in determining
tant
whether to notice
present,
responded
Promise,
(citing
error.”
F.3d at 194
questions:
members’
Johnson,
1544;
ment of
even the most
of the “child” is
occasionally
away by
certainly
counsel are
carried
dispositive2
tant
element
temptation.”).
regard,
judging
legal
In this
sufficiency
we when
anof
of-
agree
position
involving
with the Government’s
fense
indecent acts with a child.
Tindoll,
improper
it
“surgically
is
a See
States v.
16 USCMA
carve” out
(1966); French,
portion
supra.
341 intercourse, you’ve heard you he the evidence led actual to sexual what’s indecent.” She neither knowledge. the issue of guilty of carnal on would have been under-instructed, over-instructed, prop- nor that KAS The evidence also reflects facts intercourse, leaving to erly but evaluation of appellant discussed sexual any emphasis much Accordingly, rational of fact. Too told him “no.” trier KAS prejudiced appel- might have particular determine that fact fact-finder could indecent, emphasis an unasked accom- Too much conduct with KAS was lant. desires, satisfy question, may his and was have steered members plished legal to sexual channel, discrediting of this rocks wrong facts or onto the service down case. the case law identified and shoals of Bellamy, v. opinion. See United States lead agree Even if one were able to with 617, 620, 115, 118 36 CMR 15 USCMA majority’s analysis judge’s that the instruc- Harris, (1966); 6 v. USCMA United States permit mem- tions were “not sufficient to United CMR intelligently decide unusual bers this (AFCMR Speer, MJ States case,” 334-35, possi- 57 MJ at there could not 1976)(“[T]hough an accused is entitled Court, “plain Supreme bly be error” as relating presented have instructions Court, courts and other federal circuit evidentiary theory for which there is defense Accordingly, I have defined that term. he, nor that matter the support, neither for Air Force would affirm the United States Government, particular is entitled to have Appeals. Court Criminal singled given undue favorable facts out judges required If trial were emphasis.... BAKER, Judge (dissenting): designed highlight give instructions presented evidentiary factor each individual Military departure service is a line of parties, in favor of would 'instructions oath, a taking adulthood. After the service ” (quot- magnifications.’ a mixture of become young by longer judged or woman man is no 66) Harris, ing 6 USCMA at CMR teenager, the standards of adolescent but omitted)). (citations things, by, among rather an adult other as the standards contained in the Uniform Code majority The now that a better concludes (UCMJ). in ma- Changes Justice required. appellate That instruction turity, discipline, may values be less judges, their with time consideration on immediate. side, identify might can issues that have aris- might
At the of his have been discussed in an time consensual sexual con- en error, unless, KAS, equal appellant instruction duct adult. KAS does law, military judge fifteen-year-old matter of in fact was a child. Whether Ward, F.2d was, erred. See lant’s conduct was indecent on these (9th Cir,1990)(“The facts, availability judgment contextual for the trier of ground fact to based a better instruction not a for rever- make on all facts. See sal”). Wilson, majority persuaded The me has United States Therefore, 1982); Arviso, respectfully I dissent. otherwise. (ACMR 1991). There no indica- otherwise, tion the members did that the them to other- instructed do trial, object appellant
wise. A member
“Should we or
At
did not
asked:
military
[appellant’s] age,
given
judge.
‘...
should we not consider
instructions
’
object
...
experience, prior
“Failure to
an instruction or
contact
days
proximity
the mem-
to 17
omission
an instruction before
the acts with
close to deliberate constitutes waiver
bers
objection
were indecent
...
in the absence of
error.”
[KAS]
[?]”
Courts-Martial,
affirmative,
920(f),
Manual
responded
R.C.M.
(2000 ed.).
response: “[M]y
prevail
in-
To
on a
succinct and accurate
error,
theory
has the
struction to
should consider
*12
persuading
majority
military judge
threshold burden of
court
The
holds
the
this
that
(1)
(2)
error,
provide adequately
an
that
there was
that it was
“failed to
tailored instruc-
(3)
question
law,
indecency
tions on the
after
clear
under current
of
obvious
court
asked
an
materially prejudiced
member
for
instruction on
that
a substantial
disagree.
Finster,
this matter.”
at 331.
I
right.
51 MJ
Powell,
argument
majority’s
appears
hinge
The
460, 463-64
the
“It is
rare case in
incongruous
on
conclusion that
mili-
the
improper
justify
which
instruction will
tary judge omitted instructional information
reversal of a criminal conviction when no
might
responsive
that
have been
to the mem-
objection has been made in the trial court.”
question. Specifically, majority
ber’s
the
ar-
Kibbe,
Henderson v.
431 U.S.
military
gues
judge’s
the
instruction failed to
S.Ct.
52 L.Ed.2d
(1977)(emphasis
address:
added).
(1)
appellant’s
whether
sexual conduct
per
KAS
se indecent because
majority
The
manufactures
child, ie.,
16;
she was a
this case
coupling
argument
trial counsel’s
(2) whether his sexual conduct with KAS
military judge’s
with the
answer to a mem-
per
se indecent because she had
question regarding indecency.
ber’s
not-
As
legal age
not reached the
of
consent
above,
worthy
ed
repetition,
but
of
mem-
the
conduct;
such
military judge
ber’s
referred the
addressing
her written instructions
those cir-
(3) assuming appellant’s sexual conduct
cumstances that should be considered on the
per
KAS was not
se indecent on
Then,
sodomy.
regarding
offense of forcible
grounds,
either of the above
acts,
the offense of indecent
the
part
member
evidence of factual
on
consent
the
[sjhould
“...
asked
we or should
KAS can be considered
determin-
we
education,
ing
indecency
‘.
the
con-
age,
expe-
accused’s
rience,
duct.
prior
proximity
contact with ...’ or
age to 17 years
days
when determin-
S6í
(1)
majority’s analysis
The
concludes that
ing whether the acts with
inde-
were
[KAS]
(2)
law,
are not the
and that as to
...
military judge
cent
The
responded
[?]”
Court
never
that
this
has
held
consent is
by explaining
wording,
that the
which
short,
In
irrelevant.
case law ...
“[o]ur
referred,
member had
went
the issue of unequivocally
all
holds that
the facts and
fact,
might pertain
mistake of
which
to the
including
alleged
circumstances of
case
charge
military
sodomy.
of forcible
The
victim’s
on
inde-
consent
considered
moved
of indecent
cency
so,
then
question.”