United States v. Johnson

54 M.J. 67, 2000 CAAF LEXIS 984, 2000 WL 1269837

Opinions

Senior Judge COX

delivered the opinion of the Court.

On October 22, December 9, 12, and 13, 1996, and January 16, 1997, appellant, a staff sergeant, was tried by a general court-martial comprised of officer and enlisted members. Pursuant to his pleas, he was found guilty of carnal knowledge, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920. Contrary to his pleas, he was found guilty of one specification each of maltreatment¹ and assault consummated by a battery,² in violation of Articles 93 and 128, UCMJ, 10 USC §§ 893 and 928, respectively. Appellant was sentenced to a bad-conduct discharge, 5 years’ confinement, forfeiture of $874.00 pay per month for 60 months, and reduction to the grade of Private E-l. The convening authority approved this sentence.

The carnal-knowledge conviction resulted from appellant’s admitted sexual intercourse (3 times) with S, a 14-year-old girl he was babysitting. Appellant does not appeal this conviction. The maltreatment and assault-consummated-by-a-battery convictions resulted from incidents which occurred between appellant and Specialist (SPC) MC over a year (June 1995-June 1996).

The Court of Criminal Appeals set aside the finding of guilty of maltreatment of SPC MC and dismissed that charge in an unpublished opinion. The convictions for carnal knowledge (of SP) and assault consummated by a battery (of SPC MC) were affirmed. Unpub. op. at 2-3. The sentence was also affirmed, based on the entire record and the error noted, under United States v. Sales, 22 MJ 305 (CMA1986). Unpub. op. at 3.

We granted review of the following issues:

I

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MC] CONSENTED TO THE TOUCHING.

II

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MC’s] CONDUCT GAVE APPELLANT THE MISTAKEN BELIEF THAT SHE CONSENTED TO THE TOUCHING.

FACTS

At the time of the offenses, SPC MC was stationed at Fort Drum in the 10th Mountain Division Band. According to SPC C, appellant was SPC C’s squad leader, operations NCO, and friend. When asked if appellant had ever touched her in any way, SPC C testified that the touches consisted of: “Massages, hugs, tickling, [and] punching fights.”

This conduct lead to appellant’s being charged with one specification of hugging SPC C and rubbing her back with the intent to gratify his lust and sexual desires. As a result of SPC C’s trial testimony that the hugs were consensual and pursuant to a defense motion for a finding of not guilty, the military judge excepted “hugging” from the specification. The members also altered the specification, finding appellant, by exceptions and substitutions, not guilty of indecent assault on SPC C, but guilty of the lesser-included offense of assault consummated by a battery by rubbing her back.

With regard to the backrubs, SPC C testified that appellant rubbed her back on several occasions when she was “typing or doing some type of work.” SPC C shrugged “to try to get out of it,” but did not specifically tell him to stop because “there was [sic] other people around and [she] didn’t want any attention.” SPC C testified on direct examination that she didn’t like the backrubs because they interrupted her work, and later on redirect examination, that they made her feel uncomfortable. She also testified that in response to her shrugging, sometimes appellant would stop and sometimes he would rub a little bit more. She testified that she didn’t report this conduct because she didn’t want to draw attention to herself and because

at the time, I didn’t feel it was necessary. And the reason why I did come out with this is because when the whole case with [SP] came out, my commander had asked all the squad leaders—

At this point the testimony was interrupted by a hearsay objection. SP is the 14-year-old daughter of appellant’s supervisor in the same band unit. Appellant was charged with carnal knowledge of SP which occurred while appellant was babysitting SP.

The court below concluded, with respect to the back rubbing: “A failure to verbally protest, and thus draw attention to oneself, when the assault takes place in an open administrative office, does not equate to consent.” Unpub. op. at 2-3. The court below also concluded that failing “to confront appellant and verbalize that his improper touching bothered her could not have raised an honest and reasonable belief in the mind of this experienced NCO that SPC C consented to his advances.” Id at 3.

DISCUSSION

The elements of assault consummated by a battery are (1) “That the accused did bodily harm to a certain person; and” (2) “That the bodily harm was done with unlawful force or violence.” Para. 54b(2), Part IV, Manual for Courts-Martial, United States (1995 ed.). The “bodily harm ... must be done ... without the lawful consent of the person affected.” Bodily harm is defined as “any offensive touching of another, however slight.” Para. 54c(l)(a). We have also determined that, as a general matter, consent “can convei’t what might otherwise be offensive touching into nonoffensive touching” and that “a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of legal excuse.” United States v. Greaves, 40 MJ 432, 433 (CMA 1994).³

The question presented is whether in view of the nature of the physical contact involved in the friendly relationship between appellant and SPC C, a reasonable factfinder could conclude beyond a reasonable doubt that the backrubs were undertaken without the consent of SPC C. SPC C, according to her own testimony, regarded appellant as a friend. She also testified, when asked if appellant had ever touched her in any way, that the touches consisted of: “Massages, hugs, tickling, [and] punching fights.” This conduct lead to the charge against appellant for hugging SPC C and rubbing her back. No charges were brought against appellant for the tickling and punching fights the two engaged in. At trial, SPC C testified that the hugs were consensual, and the military judge eliminated “hugging” from the specification, leaving only the backrubs.

There is no question that a backrub could, under some circumstances, constitute an offensive touching; this Court has found even a kiss to be an offensive touching. See United States v. Sever, 39 MJ 1 (1994). We are also sensitive to the fact that appellant was a superior noncommissioned officer and that such a relationship can create a “unique situation of dominance and control”. United States v. Clark, 35 MJ 432, 436 (CMA 1992).

Under the facts presented here, however, there is no indication that SPC C felt unable to protest appellant’s actions and in fact felt comfortable enough to shrug him off. Numerous types of touches marked SPC C’s relationship with appellant, none of which SPC C testified were offensive. On the contrary, the only difficulty SPC C had with the backrubs was related to appellant’s poor judgment. She was uncomfortable because the backrubs w^ere open and notorious in the work environment, but she did not provide any evidence that they were offensive. Although the evidence may show appellant’s bad judgment or a violation of other social or military norms, we hold that the evidence does not support a criminal conviction for assault consummated by a battery under Article 128. The fact that SPC C was not motivated to report any of this mutual touching, including the backrubs, until she heard about the carnal-knowledge charge against appellant which involved the young daughter of another band member, supports this conclusion.⁴

Even viewing this evidence in the light most favorable to the Government, we are not persuaded that appellant was on notice that SPC C did not consent to the backrubs, and we do not believe that a rational trier of fact could have found the elements of assault consummated by a battery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. (1979); United States v. Turner, 25 MJ 324, 326 (CMA 1987). Accordingly, that conviction cannot stand. This action requires further review of the sentence by the court below.

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge III and its specification and the sentence. The findings of guilty thereon are set aside and that charge is dismissed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for reassessment of the sentence based on the remaining findings of guilty.

1 . At trial, appellant was found not guilty of another specification of maltreatment.

2 . The members found appellant not guilty of indecent assault, but guilty of the lesser-included offense of assault consummated by a battery.

3 . Our dissenting colleague, in his zeal to affirm appellant’s assault-consummated-by-a-battery conviction, turns the burden of proof on its head. It is not the burden of appellant to prove that SPC C consented to the backrubs; rather, in the entire context of this case, the burden was on the Government to prove each and every element of the assault consummated by a battery, one of which is lack of consent. Para. 54c(l)(a).

4 . With respect to our colleague’s expressions of concern about sexual harassment, we emphasize that sexual harassment should not and cannot be tolerated in the military community. Appellant, however, was charged with assault, not with sexual harassment. Thus, as appellate judges, we are not confronted with the question whether appellant was guilty of sexual harassment, but rather whether the Government proved each and every element of assault consummated by a battery beyond a reasonable doubt. It did not.