2012 (September Term)
United States v. Gaskins, 72 M.J. 225 (after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault).
2008 (Septermber Term)United
States v. Chatfield, 67 M.J. 432 (the elements of
indecent assault
under Article 134, UCMJ, are that: (1)
the accused assaulted a person; (2) the act was done to gratify sexual
desires;
and (3) the conduct was prejudicial to good order or of a nature to
bring
discredit to the armed forces).
(the evidence produced by the
government at trial was legally sufficient to prove appellant digitally
penetrated the victim with the intent to gratify his sexual desires,
where
appellant admitted that he rubbed his victim down below and might have
penetrated her, where the victim woke on a bed to find appellant behind
her and
her underwear pulled down around her knees, where the victim felt like
she had
been penetrated, and where another witness saw appellant grabbing the
victim’s
breast, saw movement under the covers around the victim’s waist, and
saw appellant
turn away and button his pants after the victim awoke).
United
States v. DiPaola, 67 M.J. 98 (while an
indecent assault offense includes a
specific intent element as to whether the touching was committed to
satisfy the
lust or sexual desires of the accused, the lack of consent element of
the
offense is a general intent element; accordingly, a mistake-of-fact
defense on
this element would require both a subjective belief of consent and a
belief
that was reasonable under all circumstances).
(evidence that the victim
consented to and
willingly participated in some of the sexual acts listed in the
specification
was some evidence that appellant honestly and reasonably believed the
victim
consented to some of his actions, requiring a mistake-of-fact
instruction on
the indecent assault specification; appellant and the victim had a
prior
consensual sexual relationship, the victim consented to the removal of
her
shirt and the kissing of her breasts after saying “no” to intercourse,
creating
a mixed message as to which acts were permissible and which were
off-limits;
where the record revealed a mixed message evidentiary situation in
conjunction
with defense counsel’s mixed message theme in his opening and closing
statements and his request for a mistake-of-fact instruction, it
contained some
evidence of a mistake of fact that the panel could attach credit to if
it so
desired, and the military judge erred in failing to give a
mistake-of-fact
instruction on the specification).
(in the context of this case,
the absence of a
mistake-of-fact instruction on the indecent assault specification was
not
harmless beyond a reasonable doubt because that instruction resulted in
a
finding of not guilty when given with respect to an indecent exposure
specification involving the same victim in the same setting; had the
military
judge given a mistake-of-fact instruction informing the panel to
consider the
prior relationship and the circumstances leading up to the indecent
assault
incident, it is not clear beyond a reasonable doubt that a rational
jury would
have found appellant guilty absent the error; the missing instruction
essentially undercut a defense theory and could very well have
contributed to
the finding of guilty).
United
States v. Mitchell, 66 M.J. 176 (the intent
element of indecent assault may be
satisfied, in the case of an accomplice, by proof that the accomplice
shared in
the perpetrator’s criminal purpose and intended to facilitate the
intent of the
perpetrator with respect to the commission of the offense; when an
accused
pleads guilty to aiding and abetting an indecent assault, the accused
must
admit to sharing in the perpetrator’s criminal intent to gratify the
lust or
sexual desires of the perpetrator; the accused’s admissions must
objectively
support a military judge’s finding that:
(1) the accused possessed the specific intent to facilitate the
commission of the indecent assault; (2) the accused had a guilty
knowledge; (3)
the indecent assault was being committed by someone; and (4) the
accused
assisted or participated in the commission of the indecent assault).
(in this case, appellant’s
pleas of guilty to
committing an indecent assault, by aiding and abetting a fellow Marine
to have
sexual intercourse with the victim was provident, despite appellant’s
objection
that the plea inquiry did not demonstrate that he acted with the
specific
intent to gratify his own lust or sexual desire; appellant admitted
that he
acted with the specific intent to gratify the perpetrator’s lust or
sexual
desires; in addition, appellant admitted that he intended to facilitate
the
perpetrator’s commission of the indecent assault, knew that the
perpetrator had
indecently assaulted the victim, and encouraged the perpetrator’s
commission of
the indecent assault; the military judge was not required to elicit
facts from
appellant demonstrating that he intended to gratify his own lust or
sexual
desires).
United
States v. Ayers, 54 MJ 85 (evidence was legally
insufficient to show that alleged victim of indecent assaults did not
consent
where: (1) she knew the appellant was being flirtatious; (2) she
invited
herself to a movie in the day room, sneaked out of her barracks room,
and
voluntarily followed appellant into a conference room; (3) she admitted
that
she was interested in and infatuated with appellant; (4) she admitted
she was a
willing participant; (5) she once waited for appellant to return when
he left
briefly; (6) she cooperated with appellant’s instructions as he began
to
massage her; (7) she stated that she did not consider the acts an
assault or rape;
(8) she called appellant and talked to him several times over the
following few
days; (9) she voluntarily met with him again; (10) she did not report
the
incident until summoned to the commander’s office; and (11) her
testimony, in
sum, was that there was no unwanted sexual touching).