United States v. Huberty

50 M.J. 704, 1999 CCA LEXIS 129, 1999 WL 293905
CourtUnited States Air Force Court of Criminal Appeals
DecidedApril 28, 1999
DocketACM 32574
StatusPublished

This text of 50 M.J. 704 (United States v. Huberty) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Huberty, 50 M.J. 704, 1999 CCA LEXIS 129, 1999 WL 293905 (afcca 1999).

Opinion

OPINION OF THE COURT

SNYDER, Chief Judge:

Appellant was convicted, contrary to his pleas, by a general court-martial of consensual sodomy, wrongful and dishonorable fondling of his genitals in an area open to public access and view, wrongfully and dishonorably committing indecent acts, and adultery. Articles 125, 133, and 134, UCMJ, 10 U.S.C. §§ 925, 933, and 934. He was sentenced to a dismissal, confinement for 6 months, and a reprimand. The convening authority approved the sentence as adjudged. Appellant has submitted 11 assignments of error for this Court’s consideration. Finding no error prejudicial to appellant’s substantial rights, we affirm.

Appellant’s conviction for dishonorably fondling his genitals arose out of an incident at a public swimming pool in The Netherlands. The sodomy, indecent acts, and adultery occurred with appellant’s 17-year-old female legal ward, AKH.

I. VIEW OF THE PREMISES

A. Background

Appellant avers that the military judge committed prejudicial error when he denied an unopposed defense request to view the premises of the swimming pool, the scene of appellant’s wrongful and dishonorable fondling of his genitals (Specification 1, Charge II). The events supporting this charge occurred on 5 December 1995 at the In de Bende Schwimmbad, a public swimming pool near Landgraaf, The Netherlands, where appellant had taken his young son for an evening swim. He had left his son in the wading pool while he went to change out of his swimming attire. The changing area for each sex consisted, in part, of small individual changing booths and a larger area, which included a shower, across a small walkway or hall from the booths. Although the respective areas for men and women were clearly marked, it was common practice for women to use the changing booths on the men’s side but not vice versa. However, women were not permitted to enter or use the larger area which contained the shower.

BV, a Dutch national, testified that she and her cousin were changing on the men’s side in the booths when they observed appellant walk up and down the walkway twice. BV’s booth was across from the doorway to the larger men’s changing area, where she had an unobstructed view into the area as a result of the door being open. While she was changing her clothes, she observed appellant nude while he was changing simply by looking through the open door to the larger area. When BV availed herself of a third view of appellant, he was masturbating. When he made eye contact with her, he smiled, spit in his hand, and continued to masturbate. Appellant, on the other hand, testified that he was changing clothes in the large area when he realized the door was open and BV was looking at him. He considered this an invasion of his privacy and tried to communicate that to her by his facial expression and the manner in which he closed the door. He emphatically denied either fondling his genitals or masturbating.

Civilian trial defense counsel argued that a view of the swimming pool by the members [708]*708was desired because it was important that the members see how clearly the men’s and women’s dressing areas were marked and that appellant was where he had a right to be. Further, civilian trial defense counsel argued a viewing was necessary so that the members could see that, contrary to her testimony, BV did not have an unobstructed line of sight view into the large area but had to exert considerable effort to see appellant. The military judge denied the request. He ruled that, “[fjirst, I don’t see where this is a complicated thing where either photographs or videos wouldn’t be appropriate to use.” He also based his decision on the anticipated logistical requirements, including the necessity of taking a court reporter in the event the members had questions during the viewing. In addition to diagrams used by the witnesses, the military judge allowed the prosecution and defense to introduce video tapes of the swimming pool which each had made.

B. Discussion

Rule for Courts-Martial (R.C.M.) 913(c)(3) provides in part that, “[t]he military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object.” The discussion states that “[a] view or inspection should be permitted only in extraordinary circumstances.” In view of the rule placing this matter firmly within the sound discretion of the military judge, the standard of review of the military judge’s ruling is an abuse of discretion. See United States v. Marvin, 24 M.J. 365 (C.M.A.1987); United States v. Borner, 12 C.M.R. 62, 66, 1953 WL 2182 (C.M.A. 1953).

The party who requests a view or inspection has the burden of proof both as to relevancy and extraordinary circumstances. With regards to the former, the proponent must demonstrate that a view or inspection is relevant to the case. Mil.R.Evid. 401 and 402. However, for purposes of R.C.M. 913(c)(3), the issue asserted by the proponent must be of more than minimal relevance. Cf. Marvin, 24 M.J. at 366 (stating that because of witness’ inability to identify appellant as perpetrator, “evidence sought to be elicited by the defense either from the view or through testimony about the reenactment would seem of marginal relevance at best”). To meet this prong, the proponent must establish to the military judge’s satisfaction that a view or inspection is relevant to the issue of guilt or innocence of the accused, as opposed to a collateral issue. Should the military judge conclude the relevancy requirement is met, the proponent must still demonstrate the existence of extraordinary circumstances.

R.C.M. 913(c)(3) and the discussion thereof are based on Manual for CourU Martial, United States (MCM), 154e (1969 Revised ed.). Drafter’s Analysis, MCM A21-60 (1995 ed.). The 1969 Manual, unlike the 1995 edition, included the exceptional circumstances requirement within paragraph 54e. See Marvin, 24 M.J. at 366 n. 4. This distinction, however, is only of passing significance, as the nonbinding, but persuasive, discussion clearly suggests a finding by the military judge of extraordinary circumstances prior to authorizing a view or an inspection is required. At least one of our sister service courts has adopted the discussion’s suggestion that a finding of extraordinary circumstances is necessary prior to authorizing a view or inspection. See United States v. Ayala, 22 M.J. 777, 795-97 (A.C.M.R.1986). We discern no reason to conclude otherwise. Therefore, this Court now specifically holds that the military judge must find that sufficient extraordinary circumstances exist to justify a view or inspection. This holding naturally raises the question of what will constitute extraordinary circumstances?

Extraordinary circumstances exist only when the military judge determines that other available alternative evidence is inadequate to sufficiently describe the premises or object. Alternative evidence includes testimony, diagrams, photographs, or videos.

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Bluebook (online)
50 M.J. 704, 1999 CCA LEXIS 129, 1999 WL 293905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-huberty-afcca-1999.