United States v. Court

24 M.J. 11, 1987 CMA LEXIS 255
CourtUnited States Court of Military Appeals
DecidedApril 20, 1987
DocketNo. 50,414; ACM 24200
StatusPublished
Cited by29 cases

This text of 24 M.J. 11 (United States v. Court) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Court, 24 M.J. 11, 1987 CMA LEXIS 255 (cma 1987).

Opinions

Opinion of the Court

EVERETT, Chief Judge:

As a result of an incident that occurred at Ishikawa, Japan, on August 20, 1983, appellant now stands convicted by general court-martial of indecent assault on Betty Copeland and committing indecent, lewd, and lascivious acts on her, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, as well as of conduct unbecoming an officer and a gentleman, in violation of Article 133, UCMJ, 10 U.S.C. § 933. The approved findings as to the alleged unbecoming conduct encompass the allegations of the indecent-assault and inde[12]*12cent-acts specifications.1 Appellant’s sentence as adjudged by the members and approved on appellate review, 18 M.J. 724 (A.F.C.M.R. 1984), was dismissal, confinement for 6 months, and total forfeitures. We granted review. 19 M.J. 145 (1984).

Appellant contends that the indecent-assault and committing-indecent-acts specifications are multiplicious for findings with the specifications alleging conduct unbecoming an officer by committing the indecent assault and indecent acts. He also complains that, in defending on the merits, he was improperly restricted from introducing evidence of his good military character. We agree in both respects.

I

In United States v. Timberlake, 18 M.J. 371, 375 (C.M.A. 1984), we held that “where the underlying conduct required for conviction under Article 133 is ... [a crime] defined by ... [a specific punitive article], we conclude Congress intended ... [the specific crime] to be a lesser-included offense of conduct unbecoming an officer.” The same principle applies when the act alleged under Article 133 is the same as an act alleged under Article 134. United States v. Rodriquez, 18 M.J. 363 (C.M.A. 1984). Accordingly, the specifications alleging indecent assault and indecent acts are multiplicious for findings with the specifications alleging that Court committed conduct unbecoming an officer by committing the assault and indecent acts. Therefore, the specifications under Article 134 (Charges I and II) cannot coexist with those under Article 133 (Additional Charge).

II

Appellant’s evidentiary claim requires consideration of the facts. According to all the evidence, members of appellant’s unit had joined on the evening in question in a “progressive Mexican [dinner] party.”2 The alleged victim’s husband was newly assigned to the base; and, although he was away on temporary duty, she had been invited to attend the party alone so that she might meet some of the people in her husband’s squadron. She and Court had first met over 8 years before, when he and her husband were roommates at Officers Training School. Although she did not consider appellant a close personal friend, they were at least speaking acquaintances.

In general, the prosecution established through her testimony that, during the evening, Court had made three “passes” at her, two involving intimate physical contact which she verbally and physically resisted.3 The Government’s case was buttressed by photographs taken shortly after the incident, showing bruises on parts of her body where appellant had touched her. Moreover, two women testified that they also had been at the party and had come upon her as she fled from appellant after his last advance. They described her as emotionally upset, out-of-breath, and complaining that she “almost got raped.”

In response, the defense relied on an intoxication defense and on alcoholic amnesia. The evidence indicated that over several hours Court had drunk a considerable [13]*13amount of alcohol at the party and that he had become loud and boisterous, although remaining in control of himself. Appellant testified that all he could remember from the later part of the evening was one occasion when the two had mutually engaged in “French kissing,” during which she had gently removed his hand from her breasts. He swore that, although he could not specifically remember much of what had occurred that evening, it would have been totally out of character and contrary to his principles for him to have forced himself on any woman who indicated to him that his sexual advances were unwelcome.

Others who had attended the party indicated that the alleged victim had appeared receptive to Court's physical contacts earlier in the evening and, indeed, apparently had initiated some of her own. Moreover, the defense presented an impressive amount of testimony concerning Court’s excellent reputation for being a law-abiding citizen, absolutely truthful and fully trustworthy, and not physically aggressive toward women — all in an effort to convince the members that he was not the sort of person who would ignore a woman’s resistance to his amorous overtures.

Some of this character evidence came from appellant’s current and past commanders. The same witnesses also described some of his important assignments, including his service in an Air Staff Training post at the Pentagon. Pointing to this evidence about his military assignments, the Court of Military Review stated that “the witnesses were permitted, indirectly, to provide some significant evidence of the accused’s good military character.” Id. at 727.

A

The problem is that appellant was precluded by the military judge from presenting additional, direct evidence of his good military character. At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), prior to the trial, assistant trial counsel “move[d] in limine to exclude good military character on the findings portion of the trial, based on United States v. Cooper [, 11 M.J. 815 (A.F.C.M.R. 1981),] and United States v. Belz [, 14 M.J. 601 (A.F.C.M.R. 1982), set aside, 20 M.J. 33 (C.M.A. 1985) ].” Explaining his motion, the prosecutor noted that many of appellant’s requested witnesses “were requested [in order] to testify to his military proficiency.” Arguing that Cooper and Belz permitted such evidence “to come into issue and be sustained on the findings portion of the trial” only when “the gravamen of the offense ... [is] a purely military type offense,” assistant trial counsel insisted that appellant stood charged with offenses whose gravamen was not of this nature.

In reply, defense counsel pointed out that two of the specifications alleged conduct unbecoming an officer and that, accordingly, appellant’s “record of military proficiency, his integrity both as an officer and as a member of the community are in question here.” Further, he argued that, inasmuch as the other charges alleged the same acts upon which the charge of conduct unbecoming an officer was based, “Captain Court’s record for military proficiency, duty performance, and his conduct as an officer” were also admissible as to those offenses. The prosecutor responded that “the mere charging of an offense under Article 133 does not place an accused’s good military character into issue.”

Observing that the alleged offenses occurred off-duty and off-base, did not involve a subordinate as a victim, and did not occur during an official unit party, the military judge granted the Government’s motion in limine.

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24 M.J. 11, 1987 CMA LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-court-cma-1987.