14 M.J. 654 | U.S. Army Court of Military Review | 1982
OPINION OF THE COURT
The appellant was convicted, inter alia, of communicating insulting language to a female, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1976). His approved sentence provides for a bad-conduct discharge, confinement at hard labor for three months, and forfeiture of $334.00 pay per month for three months.
We agree with the appellant’s contention that the evidence is insufficient to sustain his conviction. The specification in question alleges that the appellant said, “You are a smart ass!” to a female soldier, Specialist Five Loy. The language was spoken as Specialist Loy was attempting to calm the appellant, who was being argumentative and disruptive in a medical facility during the early morning hours. After the appellant had repeatedly and profanely refused to obey the orders of the Charge of Quarters, Sergeant Barr, to “be at ease,” Specialist Loy approached the appellant and suggested that he be more careful in his language, lest he find himself in serious trouble, to which the appellant responded, “You’re not my mother. You’re not my father. You don’t have to be a smart ass like that.” The military judge instructed the court members that insulting language is “the use of language which treats another with shameless effrontery, contempt, or indignity, under circumstances where such language was without justification.” This definition conformed to the suggested language in Department of the Army Pamphlet 27-9, Military Judge’s Guide, 19 May 1969, as amended by Change 1, 22 October 1969, paragraph 4-158.
The military judge was incorrect when he informed the court members that there was no violation of Article 134 unless the language was spoken to a female. Article 134 is “gender neutral.” United States v. Respess, 7 M.J. 566, 569 (A.C.M.R.), pet. denied, 7 M.J. 249 (C.M.A.1979). That the person to whom the language was spoken is a member of the opposite sex may be a relevant circumstance to be considered in determining whether the language was libidinous and whether the speaker’s conduct
However, except for cases involving an affront to military authority as in Spigner, supra, insulting language between soldiers is not a violation of Article 134 unless the language conveys a libidinous message. See United States v. Linyear, supra 3 M.J. at 1030; see also United States v. Choleva, 33 C.M.R, 599 (N.B.R.1962). Accordingly, we hold that the military judge’s definition of “insulting language” was inadequate, notwithstanding that it conformed to the suggested definition in the Military Judge’s Guide, supra, because it failed to require the court members to find that the language conveyed a libidinous message, either expressly or by implication from the circumstances under which it was spoken.
Because of the foregoing instructional deficiencies as well as a lack of any evidence of record that the words took on a libidinous meaning from the circumstances in which they were uttered, we must set aside the finding of guilty. However, in view of the number of serious offenses of which the appellant was properly convicted and the fact the specification in question was treated as multiplicious with the other offenses for sentencing, we are satisfied that the appellant was not burdened with a more severe sentence than he otherwise would have received.
The findings of guilty of Specification 2 of Additional Charge III is set aside and that specification is dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence oh the basis of the errors noted and the entire record, the Court affirms the sentence.
The successor to the Military Judge’s Guide defines “insulting language” as “language which treats another with vulgarity, contempt, or indignity under circumstances where such language was without justification.” Department of the Army Pamphlet 27-9, Military Judge’s Benchbook, 1 May 1982, paragraph 3-158.
