UNITED STATES, Appellee
Gregory L. ROBBINS, Airman
U.S. Air Force, Appellant
Crim. App. No. 32613
United States Court of Appeals for the Armed Forces
Argued May 12, 1999
Decided September 30, 1999
GIERKE, J., delivered the opinion of the Court, in which COX, C.J., and CRAWFORD and EFFRON, JJ., joined. SULLIVAN, J., filed an opinion concurring in the result.
For Appellant: Colonel Douglas H. Kohrt (argued).
For Appellee: Captain Martin J. Hindel (argued); Colonel Anthony P. Dattilo and Major Ronald A. Rodgers (on brief).
Military Judge: Linda S. Murnane
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of assault and battery on his wife on divers occasions and intentional infliction of grievous bodily harm on his wife, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, as well as involuntary manslaughter by terminating the pregnancy of his wife, in violation of § 2903.04 of the Ohio Revised Code, as assimilated into Article 134, UCMJ, 10 USC 934, by the Federal Assimilative Crimes Act (ACA), 18 USC § 13. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 8 years, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 48 MJ 745 (1998).
This Court granted review of the following issue:
The facts of this case are not disputed. Appellant severely beat his wife with his fists, punching her in the face and body. She was approximately 34 weeks pregnant. Appellant broke his wifeís nose and blackened her eye. His punches to her body ruptured her uterus and tore the placenta from the uterine wall. The unborn baby, who was otherwise healthy, was expelled into the motherís abdominal cavity and died before birth.
Appellant now argues that his guilty plea to involuntary manslaughter by the unlawful termination of his wifeís pregnancy was improvident because the offense cannot be assimilated into Article 134. Thus, he argues, the offense was not cognizable under the UCMJ. The Government argues that the offense was properly assimilated and that appellantís guilty plea waived any issue of preemption.
We hold that the preemption issue was not waived by appellantís guilty plea. RCM 910(j), Manual for Courts-Martial, United States (1995 ed.),* provides that a guilty plea "waives any objection . . . insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made." RCM 905(e) provides that lack of jurisdiction or failure to state an offense are not waived by failure to raise the issue at trial. In this case, the issue relates to subject-matter jurisdiction. If the offense was improperly assimilated, it was not cognizable by a court-martial. Thus, we hold that the preemption issue was not waived by the guilty plea or appellantís failure to raise it at trial.
Article 134 provides in pertinent part as follows:
In United States v. McGuinness, 35 MJ 149 (1992), this Court held that the preemption doctrine precluded assimilation if two questions are answered in the affirmative:
In Williams v. United States, 327 U.S. 711 (1946), the Supreme Court held that the ACA could not be used to redefine and enlarge the offense of carnal knowledge under the federal Criminal Code by assimilating an Arizona statute. The federal statute required proof that the girl was under the age of 16, and the Arizona statute required proof that the girl was under the age of 18. The Supreme Court said:
In Lewis v. United States, 523 U.S. 155 (1998), the Supreme Court laid out the relevant analysis for determining whether assimilation is permissible. It stated:
* * *
The Actís basic purpose makes it similarly clear that assimilation may not rewrite distinctions among the forms of criminal behavior that Congress intended to create. Hence, ordinarily, there will be no gap for the Act to fill where a set of federal enactments taken together make criminal a single form of wrongful behavior while distinguishing (say, in terms of seriousness) among what amount to different ways of committing the same basic crime.
At the same time, a substantial difference in the kind of wrongful behavior covered (on the one hand by the state statute, on the other, by federal enactments) will ordinarily indicate a gap for a state statute to fill -- unless Congress, through the comprehensiveness of its regulation, or through language revealing a conflicting policy, indicates to the contrary in a particular case. The primary question (we repeat) is one of legislative intent: Does applicable federal law indicate an intent to punish conduct such as the defendantís to the exclusion of the particular state statute at issue?
In this case, the Ohio statute was assimilated into Article 134 by the ACA. Section 2903.04 of the Ohio Revised Code provides as follows:
* * *
(C) Whoever violates this section is guilty of involuntary manslaughter.
Before it was amended, § 2903.04(A) provided: "No person shall cause the death of another as a proximate result of the offenderís committing or attempting to commit a felony." The term "death of another" had been interpreted by Ohio courts as meaning "the death of another person," and "person" was defined as one "born alive." State v. Dickinson, 275 N.E. 2d 599, 601 (Ohio 1971). Senate Bill 239 amended § 2901.01 of the Ohio Revised Code to define "person" to include all of the following:
(ii) An unborn human who is viable.
In the same bill, § 2903.04 was amended to add the words, "or the unlawful termination of anotherís pregnancy."
The draftersí analysis of Senate Bill 239 reflects that the House made significant changes to the original Senate Bill, but the language including a viable fetus in the definition of "person" was retained, "so that as a matter of principle, a viable fetus is considered a person in the Criminal Code in the state of Ohio." The analysis explains the amendment of § 2903.04 as follows:
The first House amendment added "causing the unlawful termination of anotherís pregnancy" to Ohioís homicide statute. This has the effect of making it a homicidal offense to cause the death of a fetus at any stage of the pregnancy.
The Ohio courts have interpreted the statute consistently with the draftersí analysis. See State v. Coleman, 705 N.E. 2d 419 (Ohio App. 1997) (statute applicable even if fetus is not viable).
The fact that the Ohio legislature has classified the offense proscribed by § 2903.04 as involuntary manslaughter is not dispositive of the determination whether it can be assimilated. In order to apply the test set forth by the Supreme Court in Lewis, this Court must examine the plain language of the Ohio statute. That statute prohibits acts which "cause the death of another or the unlawful termination of anotherís pregnancy." (Emphasis added.) By drafting the "unlawful termination" language in the alternative, the legislature clearly distinguished the offense at issue from the traditional offense of manslaughter.
Congress did not specifically proscribe the killing of a fetus in either the UCMJ or the Federal Criminal Code. Articles 118 and 119 of the UCMJ proscribe murder and manslaughter, both of which are defined in terms of the unlawful killing of "a human being." Congress intended that Articles 118 and 119 be construed "with reference to the common law." See United States v. Harrison, 16 USCMA 484, 485, 37 CMR 104, 105 (1967). At common law, a newborn child was required to be "born alive" to be the subject of homicide. United States v. Gibson, 17 CMR 911, 923 (AFBR 1954); see also United States v. Conway, 33 CMR 903, 906 n.1 (AFBR 1963) ("An unborn child is a part of its mother."). Under the Articles of War that preceded the UCMJ, the law provided that the subject of a homicide "must be a living being, (not an unborn child)." See W. Winthrop, Military Law and Precedents 672 (2d edition 1920 reprint); see also Davidson, Fetal Crime and its Cognizability as a Criminal Offense Under Military Law, The Army Lawyer at 23 (July 1998).
Similarly, the federal murder and manslaughter statutes, 18 USC §§ 1111 and 1112, define murder and manslaughter as the unlawful killing of "a human being." Although these statutes were intended to "enlarge the common law definition," they still require that an infant be "born alive" to be considered "a human being." The definition was broadened only to the extent that it eliminated the common-law requirement that the child "had existed independently from its mother prior to death." See United States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988).
Applying the Supreme Courtís Lewis analysis, we answer the first question in the negative: Congress did not proscribe the unlawful termination of anotherís pregnancy in either the UCMJ or the Federal Criminal Code. Under Lewis, that negative answer "will normally end the matter."
Applying this Courtís analysis in McGuinness, we conclude that the offense to which appellant pleaded guilty is not "a residuum of elements of a specific offense," but instead is a separate offense proscribed by the Ohio Revised Code.
The Ohio statute does not conflict with congressional intent to preempt the field. To the contrary, legislation regarding termination of pregnancy is an area traditionally left to the states. See Roe v. Wade, 410 U.S. 113 (1973).
The Ohio statute does not enlarge or redefine an offense already proscribed by Congress. Section 2901.01, standing alone, would arguably be a redefinition and enlargement of federal law, because it broadens the definition of "a human being" to include a viable fetus. However, the legislative history reflects that § 2903.04, the provision assimilated in this case, effectively overrides § 2901.01. Section 2903.04 is broader than § 2901.01, because it applies to all fetuses, whereas § 2901.01 applies only to viable fetuses. Rather than redefine "a human being," § 2903.04 creates a new offense. The new offense is distinct from assault-type offenses, where the mother is the victim. It is distinct from homicide under the UCMJ or the Federal Criminal Code, which applies only to a child born alive. As such, § 2903.04 fills a gap in the criminal law and may properly be assimilated.
Since the offense is cognizable by a court-martial, there is no substantial basis to overturn appellantís guilty plea. See United States v. Prater, 32 MJ 433 (CMA 1991). However, to make clear that the offense of which appellant was convicted is not a homicide, we will strike the reference to manslaughter from the specification.
The specification of Charge II (renumbered) is amended by deleting the words, "commit involuntary manslaughter by" and changing the word "causing" to "cause."
The decision of the United States Air Force Court of Criminal Appeals with respect to the specification as modified, the remaining specifications and charges, and the sentence is affirmed.
* All Manual provisions
are cited to the version applicable at the time of trial. The 1998 version
is unchanged unless otherwise indicated.
SULLIVAN, Judge (concurring in the result):
I agree with the majority that appellantís conviction of violating Article 134, UCMJ, 10 USC § 934, by unlawfully terminating his wifeís pregnancy may be affirmed in part. However, I cannot logically or legally distinguish this case from Lewis v. United States, 523 U.S. 155 (1998), and Williams v. United States, 327 U.S. 711 (1946). Involuntary manslaughter is covered by Article 119(b), UCMJ, 10 USC § 119(b), and, therefore, we should not be assimilating Ohioís involuntary-manslaughter statute. See generally United States McGuinness, 35 MJ 149, 151-52 (CMA 1992). Nevertheless, I have chosen a different route to reach a result similar to the majority's.
Here, appellant pleaded guilty to the following offense under Article 134:
In addition, he admitted in his guilty-plea inquiry that his conduct in terminating his wifeís pregnancy by means of an assault on her person was a service disorder and service discredit. That inquiry shows:
ACC: Yes, Your Honor.
MJ: Which one do you think it is? Or do you think itís both?
ACC: Itís both, Your Honor.
MJ: Okay, and can you tell me why you think thatís so?
(Accused conferred with counsel.)
ACC: Your Honor, the fact that Iím a member of the service, it reflects on the whole service, the Air Force, and the fact that the behavior-that explains that it is wrong.
MJ: Do you agree that members of the general public might think less of the United States military forces if they knew that a member of the military unlawfully terminated his wifeís pregnancy by Ė while in the course of committing an assault upon her which resulted in grievous bodily harm to her?
ACC: Yes, Your Honor.
MJ: And do you agree that that would discredit the service, perhaps, in the publicís eyes?
ACC: Yes, Your Honor.
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