United States v. Brantner

28 M.J. 941, 1989 CMR LEXIS 430, 1989 WL 70833
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 30, 1989
DocketNMCM 88 0534
StatusPublished
Cited by9 cases

This text of 28 M.J. 941 (United States v. Brantner) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brantner, 28 M.J. 941, 1989 CMR LEXIS 430, 1989 WL 70833 (usnmcmilrev 1989).

Opinion

ALBERTSON, Judge:

Appellant was convicted, pursuant to his pleas, by a military judge sitting alone as a general court-martial for violating Articles 80, 128, and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 928, and 934, respectively. He was found guilty of one specification of attempting to commit an indecent assault, twelve specifications of assault with a means likely to produce grievous bodily harm, and twenty-two specifications of indecent assault. The approved sentence extended to confinement for five years, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge.

Appellant’s conviction arises from his conduct while a Marine Corps recruiter in rural Oregon. During questioning of recruits about their medical history, appellant would discuss the recruit's need to undergo [943]*943certain medical procedures as requirements for enlisting. Appellant told recruits that he was authorized to conduct such procedures, and that these procedures would expedite the enlistment process. These procedures included hernia examinations during which appellant fondled the recruits’ genitalia; used unsterilized hypodermic needles and syringes to inject water into recruits’ buttocks; masturbated two recruits to secure a semen sample; and used an unsterilized needle to withdraw fluid from a recruit’s scrotum and to draw blood from a vein in the recruit’s penis. Appellant now alleges (a) that his guilty pleas to all charges and specifications were improvident because the victims of these assaults consented to his acts; (b) that use of an unsterilized hypodermic needle is not a means likely to produce grievous bodily harm, thus making appellant’s pleas to the specifications under Charge II improvident; and (c) that the sentence as adjudged and approved is inappropriately harsh. We disagree and affirm the findings, as modified below, and upon reassessment, affirm the sentence as approved on review below.

I

Appellant’s first assertion that his pleas are improvident is based upon the theory that he has a complete defense to all the charges and specifications to which he pled guilty. The theory upon which appellant relies for this assertion is that consent is a defense to the offense of rape. The assaults and indecent assaults to which he pled guilty are sexual in nature and therefore, he claims, analogous to rape such that the same defense of consent applies. The argument follows that because his victims consented, even though he obtained their consent fraudulently, his pleas to the assaults and indecent assaults are improvident. Appellant maintains in the alternative, that the misrepresentations made by him to the recruits were sufficiently unrelated to the acts performed that they rendered the fraud “insignificant.” 1

We reject appellant’s first contention that the recruits’ consent to his acts of conducting purported medical procedures made these indecent contacts lawful. Appellant acknowledged at trial that the recruits submitted to his actions because they believed he had the authority to tell them to do so as part of the enlistment process. Such fraudulently induced consent, however, cannot transform appellant’s contacts with these recruits into lawful acts. Because appellant was not, in fact, authorized to perform these “examinations” and “procedures,” any consent he obtained from the victims was no defense to charges of indecent assault and assault with a means likely to produce grievous bodily harm. The indecent contact appellant made with the recruits was an unlawful application of force, and therefore an indecent assault. These offenses cannot be analogized to rape where consent, even that obtained by fraud, serves to negate the offense itself, because here the physical contact induced by appellant, with or without consent, would have been, at least, a violation of Article 134, UCMJ, indecent acts with another. See United States v. Reed, 9 C.M.R. 396, 403 (ABR 1953), pet. denied, 10 C.M.R. 159 (C.M.A.1953). See R. PERKINS & R. BOYCE (PERKINS), CRIMINAL LAW, p. 154, 1082-83, (3d edition, 1982). Finally, appellant admitted that but for his false representations that he was authorized to conduct these “examinations” and “procedures” necessary to the enlistment process, the recruits would not have submitted to his acts. Thus, appellant’s argument that his misrepresentations to the recruits were unrelated to the acts performed, such that the fraud was insignificant and did not vitiate the recruits’ consent, lacks merit.

[944]*944II

Additionally, consent of a victim is no defense when the conduct does, as here, cause or threaten serious bodily harm. This leads us to appellant’s second contention that his pleas to the specifications under Charge II alleging assault with a means likely to produce grievous bodily harm cannot be sustained because the instruments appellant used, the unsterilized hypodermic needles and syringes, were not means likely to produce grievous bodily harm. Such form of aggravated assault is established not by the subjective state of mind of the victim or assailant, see United States v. Cato, 17 M.J. 1108 (ACMR 1984); United States v. Bush, 47 C.M.R. 532 (CGCMR 1973), but by an objective test as to whether the instrument utilized is used in a manner likely to produce death or grievous bodily harm. United States v. Smith, 4 U.S.C.M.A. 42, 15 C.M.R. 41 (1954). Appellant’s victims were injected with water by unsterilized hypodermic needles into their buttocks, and had bodily fluids removed from their scrotum and penis by unsterilized needles. The stipulation of fact entered into by appellant at trial describes the likely detrimental health effects of injections administered by someone without medical training. Prosecution Exhibit 5. That no permanent injury to these victims is alleged or shown in the record is of no consequence, for assault with a means likely to cause serious bodily injury does not require that injury be inflicted. Manual for Courts-Martial, United States, 1984, Part IV, paragraph 54c(4)(a)(iv). Under the circumstances of this case, we find that appellant’s use of the needles and syringes constituted a means likely to produce grievous bodily harm.

Ill

We will sua sponte comment on the providency of appellant’s pleas of guilty to Charge I and its Specification, an attempt to commit an indecent assault upon a recruit by attempting to fondle the recruit’s genitals with the intent to gratify his sexual desires. During the providence inquiry, appellant admitted that he asked the recruit to undergo a hernia examination so appellant could fondle the recruits’ genitals. The recruit refused appellant’s request. No specific overt act was identified by the military judge in his explanation of the elements of the offense nor admitted by appellant as it related to the attempted indecent assault. Appellant admitted only that he told the recruit that a hernia examination was required for enlistment, that appellant was required to perform it, and that appellant’s intent, in part, was to fondle the recruit’s genitals in order to gratify his own sexual desire.

The issue is then whether mere words can constitute the overt act required to convict appellant of the offense of attempt,

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Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 941, 1989 CMR LEXIS 430, 1989 WL 70833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brantner-usnmcmilrev-1989.