[2]
Opinion of the Court
COX, Judge:
1. Appellant was convicted, contrary to his pleas, of rape, adultery and indecent assault (3 specifications), in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. The general court-martial composed of officers and enlisted members sentenced him to a dishonorable discharge, confinement for 12 years, total forfeitures, and reduction to E-l. The convening authority approved the sentence as adjudged, and the Court of Military Review* affirmed. We granted review of the following issue:
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILT BEYOND A REASONABLE DOUBT ON SPECIFICATION 3 OF CHARGE II (INDECENT ASSAULT).
2. Appellant, a married man, was a non-commissioned officer assigned to the U.S. Army Recruiting Co. Newburg, Stewart Army Subpost, New Windsor, New York. On August 4, 1991, he raped a military dependent, the wife of a servicemember who was overseas on military assignment.
3. The investigation that ensued uncovered at least three other women who alleged that appellant perpetrated varying degrees of sexual touching of them in the past. Each of these incidents was alleged as an “indecent assault” (Art. 134). None of the assaults, evidently, were memorialized at the time of occurrence, as each of the women could only estimate the time frame of the touching. Based on their statements, one groping was alleged to have occurred “sometime between on or about 13 June 1991 and on or about 26 June 1991.” Another was alleged to have occurred “sometime between on or about 1 May 1991 and 30 June 1991.”
4. The granted issue involves an incident alleged to have occurred “sometime between on or about 25 December 1990 and on or about 3 March 1991.” Unlike the other two assaults, which unmistakenly involved crass sexual touchings, the granted issue involves what can only be described as an attempted kiss.
5. As the victim, Sergeant (SGT) MTB described the setting:
I was coming up the hill on post, and was being sort of tail-gated by the defendant, and I pulled into the NCO [Non-Commissioned Officers] Club’s parking lot to see, whether — you know, if he was just tail-gating or what the deal was, and he pulled in the parking lot behind me.
6. In the parking lot, appellant pulled up beside her, at which point she recognized him. She did not work in the same section as appellant, but she had seen him before. He was “an acquaintance,” not a friend. The incident occurred about “[d]usk, 4:30, 5 o’clock.” SGT B got out of her car “to see what he wanted.” It was cold and overcast outside, and appellant “invited” SGT B “to sit in his car”; she did. A “casual” conversation ensued (the substance of which SGT B did not recall at the time of trial), but she could recall that nothing “unusual” or offensive was uttered by appellant.
7. During the conversation, however, as SGT B described it:
We — I remember that we were talking, and somehow or another — like I said, I don’t remember the exact conversation, but he had reached over, and then grabbed my shoulder, like trying to make a pass.
According to SGT B, appellant grabbed her right shoulder with his left hand, and it appeared he was trying to “kiss” her. His face got to “within a foot” of hers, when she “pulled back and got out of the car.” He “did not pursue” her, and there was no other physical contact.
8. Approximately a month later, on at least one occasion, appellant showed up uninvited at SGT B’s quarters at around 6:45-7:00 a.m., after she “returned from PT” (physical training). On such occasion, she “invited him in,” but she was on her way out and let him know he had to leave. SGT B did not regard appellant as “a threat,” so she did not report him to the chain of command.
[3]*39. Appellant’s description of the episode was similar. He acknowledged driving up behind SGT B on the road and flashing his headlights to pull her over. He also conceded that, in the car, he “touched her on the shoulder” and that “she drew back.” He disputed that he got his face as close as a foot to her face, but put the distance at more like “18 maybe to 20 inches.” He denied an intent to do anything immoral or against SGT B’s will. He testified, however:
I was flirting with her and I reached over to put my arm around her to see what the possibilities may be, and when I put my arm around her she relaxed back so I just — okay.
10. Upon the foregoing information, the members convicted appellant of indecent assault.
11. Manual for Courts Martial, United States, 1969 (Revised edition), listed the offense of “indecent assault” under Article 134. The elements were set out as follows:
(a) That the accused assaulted a certain female not his wife by taking indecent, lewd, or lascivious liberties with her person;
(b) that the acts were done with intent to gratify the lust or sexual desires of the accused; and
(c) 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.
Para. 213/(2) (emphasis added). In other words, the offense then required both an act which itself was indecent, etc., under the circumstances, and a prurient state of mind on the part of the perpetrator.
12. Manual for Courts-Martial, United States, 1984, however, seems to have split this offense into two separate offenses. What is now designated “Assault — indecent” (the offense at issue here) contains these elements:
(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner;
(2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; 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.
Para. 63b, Part IV (emphasis added).
13. The incorporated elements of assault (Art. 128, UCMJ, 10 USC § 928) are:
(a) That the accused attempted or offered to do bodily harm to a certain person; and
(b) That the attempt or offer was done with unlawful force or violence.
Para. 54b(1), Part IV, 1984 Manual, supra (emphasis added). “Bodily harm” is further defined as “any offensive touching of another, however slight.” Para. 54c(1)(a).
14. Thus, notwithstanding the misleading denomination, there appears to be no requirement in “assault — indecent” that the touching offered, attempted, or accomplished be “indecent.” Indeed, “assault — indecent” is merely a simple assault committed by one with a prurient state of mind.
15. The other half of the former indecent assault offense now reposes in paragraph 90, Part IV, 1984 Manual, supra (“Indecent acts with another”). The elements of that offense are:
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[2]
Opinion of the Court
COX, Judge:
1. Appellant was convicted, contrary to his pleas, of rape, adultery and indecent assault (3 specifications), in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. The general court-martial composed of officers and enlisted members sentenced him to a dishonorable discharge, confinement for 12 years, total forfeitures, and reduction to E-l. The convening authority approved the sentence as adjudged, and the Court of Military Review* affirmed. We granted review of the following issue:
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILT BEYOND A REASONABLE DOUBT ON SPECIFICATION 3 OF CHARGE II (INDECENT ASSAULT).
2. Appellant, a married man, was a non-commissioned officer assigned to the U.S. Army Recruiting Co. Newburg, Stewart Army Subpost, New Windsor, New York. On August 4, 1991, he raped a military dependent, the wife of a servicemember who was overseas on military assignment.
3. The investigation that ensued uncovered at least three other women who alleged that appellant perpetrated varying degrees of sexual touching of them in the past. Each of these incidents was alleged as an “indecent assault” (Art. 134). None of the assaults, evidently, were memorialized at the time of occurrence, as each of the women could only estimate the time frame of the touching. Based on their statements, one groping was alleged to have occurred “sometime between on or about 13 June 1991 and on or about 26 June 1991.” Another was alleged to have occurred “sometime between on or about 1 May 1991 and 30 June 1991.”
4. The granted issue involves an incident alleged to have occurred “sometime between on or about 25 December 1990 and on or about 3 March 1991.” Unlike the other two assaults, which unmistakenly involved crass sexual touchings, the granted issue involves what can only be described as an attempted kiss.
5. As the victim, Sergeant (SGT) MTB described the setting:
I was coming up the hill on post, and was being sort of tail-gated by the defendant, and I pulled into the NCO [Non-Commissioned Officers] Club’s parking lot to see, whether — you know, if he was just tail-gating or what the deal was, and he pulled in the parking lot behind me.
6. In the parking lot, appellant pulled up beside her, at which point she recognized him. She did not work in the same section as appellant, but she had seen him before. He was “an acquaintance,” not a friend. The incident occurred about “[d]usk, 4:30, 5 o’clock.” SGT B got out of her car “to see what he wanted.” It was cold and overcast outside, and appellant “invited” SGT B “to sit in his car”; she did. A “casual” conversation ensued (the substance of which SGT B did not recall at the time of trial), but she could recall that nothing “unusual” or offensive was uttered by appellant.
7. During the conversation, however, as SGT B described it:
We — I remember that we were talking, and somehow or another — like I said, I don’t remember the exact conversation, but he had reached over, and then grabbed my shoulder, like trying to make a pass.
According to SGT B, appellant grabbed her right shoulder with his left hand, and it appeared he was trying to “kiss” her. His face got to “within a foot” of hers, when she “pulled back and got out of the car.” He “did not pursue” her, and there was no other physical contact.
8. Approximately a month later, on at least one occasion, appellant showed up uninvited at SGT B’s quarters at around 6:45-7:00 a.m., after she “returned from PT” (physical training). On such occasion, she “invited him in,” but she was on her way out and let him know he had to leave. SGT B did not regard appellant as “a threat,” so she did not report him to the chain of command.
[3]*39. Appellant’s description of the episode was similar. He acknowledged driving up behind SGT B on the road and flashing his headlights to pull her over. He also conceded that, in the car, he “touched her on the shoulder” and that “she drew back.” He disputed that he got his face as close as a foot to her face, but put the distance at more like “18 maybe to 20 inches.” He denied an intent to do anything immoral or against SGT B’s will. He testified, however:
I was flirting with her and I reached over to put my arm around her to see what the possibilities may be, and when I put my arm around her she relaxed back so I just — okay.
10. Upon the foregoing information, the members convicted appellant of indecent assault.
11. Manual for Courts Martial, United States, 1969 (Revised edition), listed the offense of “indecent assault” under Article 134. The elements were set out as follows:
(a) That the accused assaulted a certain female not his wife by taking indecent, lewd, or lascivious liberties with her person;
(b) that the acts were done with intent to gratify the lust or sexual desires of the accused; and
(c) 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.
Para. 213/(2) (emphasis added). In other words, the offense then required both an act which itself was indecent, etc., under the circumstances, and a prurient state of mind on the part of the perpetrator.
12. Manual for Courts-Martial, United States, 1984, however, seems to have split this offense into two separate offenses. What is now designated “Assault — indecent” (the offense at issue here) contains these elements:
(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner;
(2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; 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.
Para. 63b, Part IV (emphasis added).
13. The incorporated elements of assault (Art. 128, UCMJ, 10 USC § 928) are:
(a) That the accused attempted or offered to do bodily harm to a certain person; and
(b) That the attempt or offer was done with unlawful force or violence.
Para. 54b(1), Part IV, 1984 Manual, supra (emphasis added). “Bodily harm” is further defined as “any offensive touching of another, however slight.” Para. 54c(1)(a).
14. Thus, notwithstanding the misleading denomination, there appears to be no requirement in “assault — indecent” that the touching offered, attempted, or accomplished be “indecent.” Indeed, “assault — indecent” is merely a simple assault committed by one with a prurient state of mind.
15. The other half of the former indecent assault offense now reposes in paragraph 90, Part IV, 1984 Manual, supra (“Indecent acts with another”). The elements of that offense are:
(1) That the accused committed a certain 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.
Para. 90b (emphasis added).
“Indecent” is defined 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.
Para. 90c.
16. In other words, the offense of committing indecent acts with another relates to the indecency of the acts themselves. There [4] is no prosecutorial requirement to establish that the accused entertained any sort of prurient state of mind at the time.
17. In the instant case, the Government alleged that appellant
commit[ted] an indecent assault on SGT ... [B], a person not his wife, by grabbing her right shoulder with his left hand and attempting to kiss her, with intent to gratify his lust or sexual desires.
(Emphasis added.) With regard to this specification, the military judge instructed the members on the offense of “indecent assault” and the lesser-included offense of “assault consummated by a battery” (offensive touching).
18. The initial question before us is whether the evidence of appellant’s grabbing SGT B by the shoulder and attempting to kiss her is sufficient as a matter of law to constitute an “assault — indecent.” We conclude that it is not. The test for determining legal sufficiency of evidence is whether, when viewed “in the light most favorable to the” Government, it is such that a “rational trier of fact could have found the essential elements of the” offense “beyond a reasonable doubt.” Jackson v. Virginia 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Harper, 22 MJ 157, 161 (CMA 1986).
19. The key question here is — what evidence proves that appellant’s attempt to kiss SGT B was done with the intent to gratify his lust or sexual desires? We do not understand that every attempted kiss, or even every intended kiss with romantic overtones, establishes an intent to gratify lust or sexual desires. What evidence here, then, is sufficient to establish that this attempted kiss had such an intent? Surely appellant’s conduct 3-6 months later with other women in other circumstances does not relate back and illuminate appellant’s state of mind at the time he attempted to kiss SGT B. If that were logically probative, then a rape victim’s sexual practices at other times with other men would also logically relate to whether she consented to the sexual advances of her alleged rapist. But see Mil. R.Evid. 412, 1984 Manual, supra.
20. Certainly we understand that some kisses, and even some attempted kisses, may, in the circumstances of the conduct, be sufficient to suggest such a state of mind. But in the absence of an admission of such a state of mind by appellant, nothing in the uncontested facts of this case went far enough to establish such an intent. Indeed, it is abundantly clear that it was pure speculation, generated by spill-over from the other, later charges, that led the court members to find this element. As a matter of law, we hold that the evidence of record is insufficient for a rational factfinder to conclude that appellant’s attempt to kiss SGT B was done with the intent to gratify his lust or sexual desires.
21. In view of appellant’s conviction of rape and the other two blatantly indecent assaults, we are satisfied that appellant was not prejudiced as to sentence by this error.
The decision of the United States Army Court of Military Review is reversed as to specification 3 of Charge II. The finding of guilty thereon is set aside and specification 3 is dismissed. In all other respects the decision below is affirmed.
Judges GIERKE and WISS concur.