UNITED STATES, Appellee
v.
George E. ROLLINS, Senior Master Sergeant
No. 04-0313
Crim. App. No. 34515
Argued
Decided
EFFRON, J.,
delivered the opinion of the Court, in which GIERKE, C.J., and CRAWFORD, BAKER,
and ERDMANN, JJ., joined.
Counsel
For Appellant:
Major Karen L. Hecker (argued); Colonel Beverly B. Knott, Colonel
Carlos L. McDade, Major Terry L. McElyea, and Major James Winner
(on brief).
For Appellee: Captain
C. Taylor Smith (argued); Colonel LeEllen Coacher, Lieutenant
Colonel Robert V. Combs, and Lieutenant Colonel Gary F. Spencer (on
brief).
Military
Judge: Thomas G. Crossan Jr.
THIS
OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of
officer members, Appellant was convicted, contrary to his pleas, of seven
offenses in violation of Article 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 934 (2000). He was found not guilty of one offense charged
under Article 134. The members sentenced Appellant to a bad-conduct
discharge, confinement for eight years, and reduction to E-5. The
convening authority revised the findings, as reflected in the following tables,
to address issues involving the application of the statute of limitations under
Article 43, UCMJ, 10 U.S.C. § 843 (2000). See Part I.A. infra;
Rule for Courts-Martial (R.C.M.) 1107(b) discussion.
TABLE
1. FINDINGS MODIFIED BY
THE CONVENING AUTHORITY
|
CHARGE |
RESULT OF TRIAL1 |
CONVENING
AUTHORITY’S ACTION |
|
Charge I |
Not guilty of
attempted rape of B; guilty of indecent assault of B “on divers occasions
from on or about |
Guilty of indecent
assault of B “on divers occasions from on or about |
|
Charge II, Spec. 1 |
Guilty of
committing indecent acts upon the body of B, a female under 16 years of age,
“on divers occasions from on or about |
Guilty of
committing indecent acts on B, a female under 16 years of age, “on divers
occasions from on or about |
TABLE
2. FINDINGS DISAPPROVED
BY THE CONVENING AUTHORITY
|
CHARGE |
RESULT OF TRIAL |
CONVENING
AUTHORITY’S ACTION |
|
Charge II, Spec. 2 |
Guilty of taking
indecent liberties with JG, a male under 16 years of age, “between on or
about 1 November 1990 and on or about 30 November 1990” |
Dismissed |
|
Charge II, Spec. 3 |
Guilty of taking
indecent liberties with JG, a male under 16 years of age, “between on or
about 1 January 1991 and on or about 31 December 1992” |
Dismissed |
|
Charge II, Spec. 4 |
Guilty of
committing an indecent act upon the body of KC, a female under 16 years of
age, “between on or about 1 June 1993 and on or about 30 June 1993” |
Dismissed |
TABLE
3. OTHER FINDINGS
|
CHARGE |
RESULT OF TRIAL |
CONVENING
AUTHORITY’S ACTION |
|
Charge II, Spec. 5 |
Guilty of
committing an indecent act with JG “between on or about 15 December 1995 and
on or about 31 January 1996 . . . by giving him a pornographic magazine and
by requesting that they masturbate together” |
Approved |
|
Charge II, Spec. 6 |
Not guilty of
committing indecent acts upon the body of B, a female under 16 years of age,
“on divers occasions from on or about |
Not applicable. See
R.C.M. 1107(b)(4) (an acquittal is not subject to
disapproval by the convening authority). |
|
Charge II, Spec. 7 |
Guilty of
receiving child pornography “from on or about 1 December 1996 to on or about
6 April 2000” |
Approved |
The convening authority approved the adjudged
bad-conduct discharge and reduction in grade, and reduced the period of
confinement from eight years to seven years. The Air Force Court of
Criminal Appeals, in an unpublished opinion, affirmed the findings and sentence
as modified by the convening authority.
On Appellant’s petition, we granted review of
the following two issues concerning the convening authority’s revision of the
findings described in Tables 1 and 2, supra, and the related
modification of the sentence:
I. WHETHER THE CONVENING
AUTHORITY ERRED BY ALTERING THE INCEPTION DATE OF TWO SPECIFICATIONS IN ORDER
TO DEFEAT A STATUTE OF LIMITATIONS CLAIM.
II. WHETHER
THE CONVENING AUTHORITY ERRED BY ATTEMPTING TO REASSESS THE SENTENCE AFTER
SETTING ASIDE THREE FINDINGS OF GUILTY.
We also granted review of a separate issue assigned by Appellant concerning the
merits of Charge II, specification 5, described in Table 3, supra:
III. WHETHER APPELLANT’S CONVICTION FOR
INDECENT ACTS WITH JG MUST BE SET ASIDE WHERE APPELLANT’S ACTIONS WERE NOT DONE
WITH THE “PARTICIPATION” OF JG AND WHERE APPELLANT’S ACTIONS ARE PROTECTED BY
THE FIRST AMENDMENT.
For the reasons set forth below, we conclude under Issue I that the convening
authority erred, in the particular circumstances of this case, by revising the
findings described in Table 1 rather than ordering a rehearing. Because
our decision on Issue I will require a rehearing on sentence, we need not
address Issue II. With respect to Issue III, we conclude that a
reasonable factfinder could have found beyond a reasonable doubt that the
essential elements of indecent acts with another were met. We also find
that the activity at issue was not protected by the First Amendment as applied
to members of the armed forces.
I. STATUTE OF LIMITATIONS
A. BACKGROUND
Appellant was convicted of various sexual
offenses under Article 134, including offenses against persons under the age of
16. At the time of Appellant’s trial, the applicable statute of
limitations precluded prosecution of such offenses if “committed more than five
years before the receipt of sworn charges and specifications by an officer
exercising summary court-martial jurisdiction over the command.” Article
43(b)(1).2
1.
Pretrial and trial proceedings
On
The military judge rejected the motion, citing
the decision of the Air Force Court of Criminal Appeals in United States v.
McElhaney, 50 M.J. 819 (A.F. Ct. Crim. App. 1999). In McElhaney,
the court concluded that Article 43(b)(1) had been supplanted in specified
cases by 18 U.S.C. § 3283 (2000), which provided an extended statute of
limitations for certain child abuse offenses tried in federal civilian
courts. McElhaney, 50 M.J. at 826-27.
Following presentation of evidence by the
parties on the merits of the charged offenses, the military judge instructed
the members on the findings, including instructions on the two offenses
pertinent to Issue I -- Charge I and its specification
and Charge II, specification 1. Each of these charges alleged multiple
crimes -- offenses that occurred on “divers occasions.”
In the course of instructing the members on
attempted rape under Charge I, the military judge instructed the members on the
elements of lesser included offenses, including the offense of indecent
assault. The instructions advised the members that to find Appellant
guilty of indecent assault under Charge I, they would have to be convinced
beyond a reasonable doubt that Appellant assaulted the alleged victim “on divers occasions from on or about
Under Charge I, the members found Appellant
not guilty of attempted rape but guilty of the lesser included offense of
indecent assault on divers occasions during the
charged time period. The members found Appellant guilty of six of the
remaining seven specifications under Charge II during the charged time
periods. See Tables 1, 2, and 3 supra.
2.
Post-trial proceedings before the military judge
Subsequent to trial, but before the convening
authority’s action, we decided United States v. McElhaney, 54 M.J. 120
(C.A.A.F. 2000), reversing the Air Force court’s interpretation of Article 43(b)(1). In McElhaney, we held that the extended
statute of limitations applicable to federal civilian proceedings under 18
U.S.C. § 3283 did not supplant Article 43. McElhaney, 54 M.J. at 126. Defense counsel in the present case
requested a post-trial session and moved to dismiss five of the seven findings,
citing the recently published decision in McElhaney.
In the post-trial session, the defense
contended that the entirety of the three offenses described in Table 2, supra,
fell outside the five-year statute of limitations in Article 43(b)(1).
With respect to the two offenses described in Table 1, supra, the
defense noted that “97% of the charged time frame” for Charge I fell outside
the five-year statute of limitations, and that “75% of the charged time frame”
for specification 1 of Charge II fell outside the five-year period. The
defense contended “[b]ecause of the manner in which the two specifications were
charged, it is impossible to determine the specific events, if any, the members
found to be true beyond a reasonable doubt that fall within the past five
years.”
In response, the Government recommended that
the military judge allow the convening authority to address the impact of McElhaney
on the findings and sentence after receiving advice from his staff judge
advocate (SJA). The military judge rejected the defense motion. It
is not apparent from the record whether the military judge rejected the defense
motion on the merits, or whether the military judge decided that any post-trial
corrections should be made by the convening authority.
3. Revision
of the findings and sentence by the convening authority
In his post-trial recommendation under R.C.M.
1106, the SJA advised the convening authority that the findings could not be
approved as adjudged in light of the application of the statute of limitations
to the offenses. The SJA recommended that the convening authority
disapprove the findings and dismiss the charges for the three offenses
described in Table 2, supra, all of which involved findings dated prior
to July 21, 1995, the critical date under the statute of limitations. The
two offenses described in Table 1, supra, involved findings of acts on “divers occasions” over a period that began before
The convening authority revised the findings
as recommended by the SJA. With respect to the sentence, the convening authority
reduced the period of confinement from eight to seven years and otherwise
approved the adjudged sentence. The Court of Criminal Appeals affirmed
the findings and sentence, as modified by the convening authority.
B. INSTRUCTIONS TO THE PANEL
REGARDING THE STATUTE OF LIMITATIONS
Issue I asks whether the revisions ordered by
the convening authority cured the prejudice from the erroneous application of
the statute of limitations at trial. The convening authority has broad
discretion under Article 60(c)(1), 10 U.S.C. §
860(c)(1) (2000), to modify the findings and sentence. This power may be
exercised to correct errors or otherwise as a matter of command
prerogative.
In Thompson, 59 M.J. 432, 439-40
(C.A.A.F. 2004), we addressed the relative responsibilities of the military
judge and the members with regard to the statute of limitations. As in
the present case, the accused in Thompson was charged with committing
rape on divers occasions over a lengthy period of
time.
The appellant in Thompson challenged
the propriety of the military judge’s action. We held that the military
judge erred, stating that when the evidence raises an issue concerning the
statute of limitations, the military judge must “provide the members with
instructions that focus[] their deliberations on . . .
the period not barred by the statute of limitations.”
[t]he time to focus the members’ attention on the correct time period was
before they concluded their deliberations -- not after they concluded their
deliberations and returned a finding that addressed a much longer span of
time. The failure to do so was not relieved by the military judge’s
subsequent reference to evidence in the record that could support the
finding. The issue here is not legal sufficiency of the evidence.
It is the failure of the military judge to focus the panel’s deliberations on
the narrower time period permitted by the statute of limitations.
The same principles apply in the present case. The issue is not whether
the record contains the bare minimum of evidence that meets the legal
sufficiency test under United States v. Turner, 25 M.J. 324, 324-25
(C.M.A. 1987)(citing the legal sufficiency test from Jackson v. Virginia,
443 U.S. 307, 319 (1979)), but whether the military judge properly instructed
the members regarding the statute of limitations. Here, as in Thompson,
the military judge did not provide the instructions necessary “to focus the panel’s
deliberations on the narrower time period permitted by the statute of
limitations.” 59 M.J. at 440.
The issue in the present appeal is whether the corrective action taken by the
convening authority cured any prejudice from the error. The period
covered by Charge I and submitted to the panel extended for more than five
years. As modified by the convening authority, the findings covered less
than three months. See Table 1 supra. The period
covered by Charge II, specification 1, and submitted to the panel encompassed
eight years, and the convening authority revised this to cover only two
years. Under Thompson, the convening authority’s action in this
case did not cure the prejudice from the military judge’s failure to focus the
attention of the members on the appropriate period of time under the
circumstances of this case. See Kotteakos v.
II. INDECENT ACTS
Appellant also challenges his conviction
under Charge II, specification 5, for a violation of Article 134 by committing
an indecent act with JG “by giving him a pornographic magazine and by
requesting that they masturbate together.” According to Appellant, the
conviction is defective on two grounds: first, that there was no active
participation by JG; and second, that Appellant’s activities were protected
under the First Amendment to the Constitution. There are no statute of
limitations issues concerning this conviction. We review constitutional
and legal sufficiency claims de novo. Jacobellis v.
A. BACKGROUND
At trial, the prosecution introduced the
following evidence through the testimony of JG, Appellant’s
brother-in-law. Appellant, who was visiting JG and his family, went to
the movies with JG, who was then under eighteen years of age. After the
movie, Appellant drove to an adult bookstore and purchased a pornographic magazine
as a gift for JG. Upon returning to the car, Appellant placed the
magazine in the backseat and told JG “Don’t look at it now. Not
now.”
Appellant then parked the car behind a nearby
grocery store, handed the magazine to JG, and suggested that the two of them
masturbate together while looking at the magazine. According to JG:
I don’t recall exactly what he [Appellant] said, but he was -- I said, “We’re
going to look at this now in the back of this building?” And he said,
“Yes.” And it appeared as though he was beginning to -- was giving me the
magazine and he said, “Well, it’s all right. Let’s -- let’s,” I
recall. And I was still not understanding
exactly what he was suggesting. I asked, “Are you suggesting that we now
look at this magazine and we masturbate behind this building?” And he
said, “Yes.”
JG
refused, left the car, and remained outside until Appellant dropped the
subject. Appellant then drove back to JG’s house and gave JG the
magazine. JG did not mention this event to anyone at the time. At
trial, Appellant acknowledged that he thought JG was eighteen years of age and
that he bought a pornographic magazine as a gift for JG, but he denied stopping
at the grocery store or discussing masturbation with JG.
B. DISCUSSION
The offense of committing indecent acts with another has three elements:
(1) that the accused committed a wrongful act with a certain person; (2) that
the act was indecent; and (3) that under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the armed forces
or was of a nature to bring discredit upon the armed forces. Manual
for Courts-Martial,
In this appeal, Appellant contends that the evidence did not demonstrate the
requisite commission of a wrongful act “with” another person. See
In the present case, we assess whether any
reasonable factfinder could have found the essential elements beyond a
reasonable doubt, considering the evidence in the light most favorable to the
prosecution. Turner, 25 M.J. at 324 (citing Jackson v. Virginia,
443
With respect to the constitutional challenge,
we note that the present case does not involve a simple exchange of
constitutionally protected material, but instead involves a course of conduct
designed to facilitate a sexual act in a public place. Appellant has not
specified the manner in which the charge violated the First Amendment, and he
has cited no case for the theory that the conduct here is protected by the
First Amendment.
In any case, even if his conduct were subject
to the heightened standard of review applicable to First Amendment claims in
civilian society, the armed forces may prohibit service-discrediting conduct
under Article 134 so long as there is a reasonable basis for the military regulation
of Appellant’s conduct. See Parker v. Levy, 417
III. CONCLUSION
The decision of the United States Air Force Court of Criminal Appeals is
reversed with respect to Charge I and its specification, and specification 1 of
Charge II, and the guilty findings to those offenses are set aside. The
decision of the Court of Criminal Appeals as to the remaining offenses is
affirmed, and the sentence is set aside. The record is returned to the
Judge Advocate General of the Air Force, and a rehearing is authorized.
1 As initially
charged, the inception date for these two offenses was
2
The subsequent legislative extension of the statute of limitations for certain
child abuse offenses is not at issue in the present appeal. See National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 551, 117
Stat. 1392 (2003) (amending Article 43); United States v. Thompson, 59
M.J. 432, 433 (C.A.A.F. 2004).
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