United States v. GillUnited States v. Gill
OPINION OF THE COURT
A militаry judge convicted appellant, contrary to his pleas, of two specifications of indecent assault, two specifications of communicating indeсent language, and one specification of indecent exposure, all in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1994). The military judge sentenced appellant to a bad-cоnduct discharge, confinement for 2 years and 6 months, and reduction to E-1. Appellant assigns nine errors. We find no error and affirm.
I. Facts
Appellant started working in the Hematology/Onсology ward at Wilford Hall Medical Center in February 1992. Over the course of the next 4 months, he made several unwanted comments of a sexual nature to Airman First Class J and Seсond Lieutenant C, who also worked on the ward. Both women told appellant that his suggestions were not appreciated and they wanted him to stop. He did not. In March, shortly before he went on leave, appellant handed a note to Airman J and told her to wait until she got off duty to read it. The note contained a most graphic description of sexual acts which appellant wanted to perform on Airman J and others that he wanted her to perform on him. Some of the sexual activities, such as eunnilingus and fellatio, are specifically proscribed by the UCMJ. When appellant returned from leave, Airman J told him she did not approve of the letter and she wanted him to stop this behavior. Sometime in April, appellant told Lieutenant C that he had had a dream about her. When she asked what the dream was about, aрpellant asked if she ever wore black. When Lieutenant C said she did, he said it was a wet dream. On 19 April, appellant handed a note to Lieutenant C while she was on duty in the ward, told her the note was about the dream, asked her if she had an open mind, and said she should not read it until she went off duty. This note was similar in content to the one apрellant gave to Airman J. It contained graphic descriptions of sexual acts he wanted to perform on Lieutenant C, including eunnilingus, and acts he wanted her to pеrform on him, including fellatio. She was shocked by its contents and ended up destroying the letter. The next time she saw appellant she told him she was offended, it was inappropriate, and she did not appreciate it. Three days later,
II. Multiplicity
Appellant alleges the military judge erred by failing to hold the indecent exposure specification was multiplicious with the specification alleging the indecent assault on Airman J because they occurred at the same time. In United States v. Teters,
Indecent Exposure
1. The accused exposed a certain part of his body to public view in an indecent maimer;
2. The exposure was willful and wrongful; and,
3. The conduct was prejudicial to good оrder and discipline or service discrediting.
Manual for Courts-Martial, United States, Part IV, ¶ 88b (1984).
Indecent Assault
1. The accused assaulted a certain person not his spouse in a certain manner;
2. The acts were done with the intent to gratify the lust or sexual desires of the accused; and,
3. The conduct was prejudicial to good order and discipline or service discrediting.
Manual for Courts-Martial, United States, Part IV, ¶63b (1984).
It is possible to commit an indecent assault without the accused exposing part of his body to public view in an indecent manner. It is also possible to indecently expose part of the body in an indecent maimer which is not an assault. Therefore, neither is a lesser-included оffense of the other. See Schmuck v. United States,
III. Remaining Issues
Appellant’s claim that the specifications alleging he communicated indecent language violate his First Amendment right to freedom of spеech because the writings were private communications between consenting adults is without merit. See United States v. Moore,
Appellant asserts that his sentence is unduly severe when compared with that of a full colonel who committed offenses far more serious than he did. (Citing Moore.) We do not think it appropriate to compare sеntences in other cases unless the sentences are highly disparate and the cases are closely related. United States v. Olinger,
At trial, appellant asked the military judge to prevent Liеutenant C from testifying about the contents of the letter appellant had handed to her because she had destroyed the best evidence — the letter. See Mil. R.Evid. 1002. The military judgе found that Lieutenant C’s testimony concerning the contents of the letter satisfied the authentication requirement of Mil.R.Evid. 901 and established the destruction of the writing such as to permit other evidence of the contents of the writing in accordance with Mil.R.Evid. 1004. He also found the probative value of the evidence was not substantially outweighеd by unfair prejudice. Mil.R.Evid. 403. Appellant alleges the military judge erred. We disagree and adopt the military judge’s findings and conclusions. Furthermore, the reliability of Lieutenant C’s memory as to the contents of the letter was confirmed by appellant during his testimony.
Appellant further claims the specification alleging the indecent assault on Lieutenant C failed to state an offense because it failed to allege appellant’s penis was erect when he pushed his pelvis into her buttocks, he had nо notice that Lieutenant C would so testify, and the government failed to prove that appellant’s acts were done with the intent to gratify his sexual desires. We believe the specification clearly states an offense. Appellant’s pressing his pelvis into the buttocks of Lieutenant C may be an offense regardless of whether or not his penis was erect. Furthermore, we find the specification clearly places the accused on notice of the elements of the offense against which he had to defend; the evidence is more than sufficient to establish that appellant did not accidentally bump into Lieutenant C and that he touched her with intеnt to gratify his sexual desires. See United States v. French,
Appellant’s remaining assignments of error, raised pursuant to United States v. Grostefon,
The findings and sentence are correct in law and fact and no error prejudicial to appellant’s substantial rights occurred. Accordingly, the findings and sentence are
AFFIRMED.