United States v. Colley

29 M.J. 519, 1989 CMR LEXIS 691, 1989 WL 103594
CourtU.S. Army Court of Military Review
DecidedAugust 29, 1989
DocketACMR 8802770
StatusPublished
Cited by8 cases

This text of 29 M.J. 519 (United States v. Colley) is published on Counsel Stack Legal Research, covering U.S. Army 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. Colley, 29 M.J. 519, 1989 CMR LEXIS 691, 1989 WL 103594 (usarmymilrev 1989).

Opinion

OPINION OF THE COURT

DeFORD, Senior Judge:

Pursuant to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of sodomy with a child under the age of sixteen years, committing indecent acts upon a child under the age of sixteen years (two specifications), and taking indecent liberties with a child under the age of sixteen years (two specifications), violations of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934 (1982) [hereinafter UCMJ]. In accordance with a pretrial agreement, the convening authority approved a sentence which provided for a bad-conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of Private El, but suspended all the punishments, to include reduction below the grade of Sergeant E5, for two years with provision for automatic remission.

On appeal, the appellant alleges that his pleas of guilty to the two specifications alleging indecent acts with a child under the age of sixteen years, and the two specifications alleging indecent liberties with a child under the age of sixteen years were improvident because the providence inquiry failed to establish that appellant’s conduct was indecent. Appellant further alleges that the offense alleging sodomy (Specification of Charge I), one of the offenses alleging indecent acts (Specification 1 of Charge II), and one of the offenses alleging indecent liberties (Specification 3 of Charge II), include periods of time barred by the statute of limitations, Article 43 of the Code. We find merit in appellant’s second allegation of error as hereinafter set forth.

I

The thrust of appellant’s first allegation of error is the military judge’s failure to define the term “indecent” as it was used in informing the appellant of the elements of proof of committing indecent acts with a minor under the age of sixteen years and taking indecent liberties with a minor under the age of sixteen years. Counsel further alleges that there is no factual basis in the record that would indicate appellant understood the term “indecent.”

A plea of guilty will not be accepted if the “accused ... sets up matter inconsistent with the plea, or if it appears that he entered the plea improvidently or through lack of understanding as to its meaning and effect.” Article 45(a), UCMJ. In order to permit reviewing authorities to make this determination the United States Court of Military Appeals established the follow[521]*521ing basic requirements to determine providence:

[T]he record of trial must reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge or the president has questioned the accused about what he did or did not do and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge or the president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.

United States v. Care, 40 C.M.R. 247, 253 (C.M.A.1969) (citations omitted).

In order to determine whether the requirements of Care, supra, have been met, the entire providency inquiry must be examined from its four corners. See United States v. Crouch, 11 M.J. 128, 130 (C.M.A.1981).

Turning to the case before us, the military judge correctly advised the appellant of the elements of each of the four offenses alleged in the Specifications of Charge II and specifically outlined the evidence required to prove each separate specification. In the third element of the offense of indecent acts with a child, he advised the accused that the acts must be determined to be “indecent.” With regard to the two specifications alleging indecent liberties with a child under the age of sixteen years, he also advised the appellant the third element of those offenses required the act to also be indecent. In each specification he advised the appellant of the specific facts alleged to have constituted the indecent acts.

The military judge did not specifically define the term “indecent acts” as set forth in the Manual for Courts-Martial, United States, 1984 [hereinafter M.C.M., 1984]. Paragraph 90(c) of the Manual defines “indecent” as “that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene and repugnant to common propriety but tends to excite lust and deprave the morals with respect to sexual relations.” 1 The military judge did, however, receive an affirmative response from the accused that he had committed the alleged acts.

The appellant stated that at various times during the period in question he had coerced his daughter into permitting him to touch her vagina both with his hands and to perform oral sex on her and ask her to do the same on him. In addition to admitting certain specific acts with regard to sodomy, he further stated that, although the sodomy was the worst of it, “it was mainly fondling or exposing myself to her while I masturbated.” Appellant admitted he had performed each act alleged and further stated with regard to the offenses admitted at Fort Knox, Kentucky, that he had “fallen into the same pattern of petting, fondling, and oral stimulation of [his daughter] by myself.” Furthermore, the military judge asked the appellant if he committed those acts during the date, time and place alleged separately in each specification and received an affirmative response. Finally, the appellant acknowledged that the acts were committed with intent to gratify his lust and sexual desires.

The acts acknowledged by the appellant were not legal conclusions but his admission that he had committed the unlawful acts alleged. The omission of a legal definition of the word “indecent” as used in the elements here was not fatal to this providency inquiry in our view. See United States v. Minor, 11 M.J. 608, 611 (A.C.M.R.), petition denied, 11 M.J. 417 (C.M.A.1981). The appellant described and admitted wrongful acts which constituted “indecent acts” within the military legal definition of that term. It should be noted that although we believe it would have been better practice for the military judge to have advised the appellant of that legal definition, the requirement is that the facts elicited show that the acts committed were indecent acts within the framework of that [522]*522legal definition.2

Accordingly,, we find no merit to this allegation.

II

Appellant further alleges that he was improperly tried for acts charged in the Specification of Charge I (sodomy), Specification 1 of Charge II (indecent acts), and Specification 3 of Charge II (indecent liberties) because prosecution was barred by the statute of limitations that the military judge failed to secure an affirmative waiver of that defense before accepting appellant’s pleas to those offenses.

Article 43(b)(1), UCMJ, provides in part: Except as otherwise provided in this section, a person charged with an offense is not liable to be tried by courts-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary courts-martial over the command.

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Bluebook (online)
29 M.J. 519, 1989 CMR LEXIS 691, 1989 WL 103594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-colley-usarmymilrev-1989.