United States v. LeProwse

26 M.J. 652, 1988 CMR LEXIS 370, 1988 WL 54394
CourtU.S. Army Court of Military Review
DecidedMay 24, 1988
DocketACMR 8701099
StatusPublished
Cited by2 cases

This text of 26 M.J. 652 (United States v. LeProwse) 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. LeProwse, 26 M.J. 652, 1988 CMR LEXIS 370, 1988 WL 54394 (usarmymilrev 1988).

Opinions

[654]*654OPINION OF THE COURT

ROBBLEE, Judge:

Appellant was tried by a military judge sitting as a general court-martial at Fort Hood, Texas. Contrary to his pleas, appellant was found guilty of two specifications of attempted indecent liberties, in violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 (1982). The military judge sentenced appellant to a bad-conduct discharge, confinement for eight months, total forfeitures, and reduction to Private E-l. The convening authority approved the sentence.

Appellant asserts (1) that the specifications alleging attempted indecent liberties upon a child fail to state the essential element of the offense, i.e., that the acts were committed “with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both,” Manual for Courts-Martial, United States, 1984 [hereinafter M.C.M., 1984], Part IV, para. 87b(2)(e); (2) that the evidence of appellant’s conduct was insufficient to prove a criminal attempt as it established no “more than mere preparation” to commit the offenses; (3) that the military judge erred in admitting in evidence certain sexual paraphernalia and sexually explicit books and magazines; and (4) that the attempted indecent liberties are multiplicious for findings. We will address appellant’s claims of error seriatim.

While the specifications of the Charge1 do not expressly allege the specific intent element of taking an indecent liberty, namely, that the appellant acted “with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both,” M.C.M., 1984, Part IV, para. 87b(2)(e), we believe that the specifications do so by fair implication. See United States v. Watkins, 21 M.J. 208, 209 (C.M.A.1986) (“[a] specification need not expressly allege all elements of an offense, but it must aver all elements by fair implication”). See also M.C.M., 1984, Part IV, para. 4f.

Certainly, it would have been better had all the elements of the indecent liberties offenses been pled; however, we conclude, as did the military judge2 that the written pleadings were sufficient to preclude a further prosecution on the same facts. See United States v. Simpson, 25 M.J. 865, 866 (A.C.M.R.1988). In the case sub judice we note that each of the specifications employed the words “wrongfully and indecently approach[ed] said [victim] and ask[ed] him to go under a bridge and remove his trousers ... and ... offer[ed] to pay the said [victim] money for doing the same.” These words, in addition to the definition of “indecent” as emphasizing an act “tendpng] to excite lust and deprave the morals with sexual relations,” M.C.M., [655]*6551984, Part IV; para. 90c, satisfy us that it is permissible to imply the requisite intent element of the offense of indecent liberties. Accordingly, we deem this assignment of error to be without merit.

Likewise, we find without merit appellant’s claim that the evidence fails to establish the attempted indecent liberties. A fortiori, to be guilty of an attempt an accused must be engaged in conduct which amounts to more than mere preparation to commit the offense. At least a substantial step toward commission of the crime must be taken. Further, such a step must be conduct corroborative of the firmness of the defendant’s criminal intent. United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), citing United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Presto, 24 M.J. 350 (C.M.A.1987).

Here the evidence of record reflects that the appellant approached his victims, two young boys, and joined them in skipping rocks on the surface of an adjacent stream. While he thus sought their confidence, he engaged them in conversation regarding what they did for spending money. As they talked, the appellant asked the boys if they were willing to go under a nearby bridge and remove their pants for a dollar. When the boys refused and began to walk away, the appellant followed them and offered to raise the price to $2.50. We conclude that appellant’s conduct beyond his initial efforts to befriend the boys constituted substantial steps directed towards the commission of these offenses. Moreover, in our view, appellant’s requests that the boys remove their trousers cannot be explained in innocent terms. Thus, we find appellant’s conduct to be strongly corroborative of his criminal intent. Accordingly, the evidence establishes the required overt actions.

As to appellant’s third assignment of error, the military judge, over defense objection, admitted in evidence a dildo, a tube of Joy Jelly lubricant, four paperback books,3 a directory listing bisexual males and females in Texas, and Gym magazine, a magazine featuring acts of homosexual sodomy between young men purporting to be athletes. The military judge, in overruling the trial defense counsel’s objections, held that the exhibits were admissible as evidence probative of the accused’s intent.

Manual for Courts-Martial, United States, 1984, Military Rule of Evidence [hereinafter Mil.R.Evid.] 404(b), provides the general rule barring from evidence the admission of extrinsic acts to demonstrate an accused’s bad character to prove criminal predisposition in the individual. It pertinently provides that:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to prove that the individual acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.)

The purposes stated in Mil.R.Evid. 404(b) for the admissibility of evidence of “other crimes, wrongs, or acts” are not all inclusive. United States v. Peterson, 20 M.J. 806, 811 (N.M.C.M.R.1985). The admissibility of such extrinsic evidence turns on the degree to which the extrinsic offense is similar to the charged offense. Id., citing United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978). As the court noted in United States v. Peterson, 20 M.J. at 811, “[t]he degree of similarity required is not constant but varies according to the purpose for which the evidence is offered.” More specifically, the greater degree of similarity which is required to establish the admissibility of evidence of modus operandi or common scheme or plan does not apply to acts merely negating innocent intent. United States v. Brannon, 18 M.J. 181, 185 (C.M.A.1984); see also United States v. Peterson, 20 M.J. 811 at n. 3. [656]*656Finally, extrinsic acts admissible under Mil.R.Evid. 404(b) must be admissible under the balancing test of Mil.R.Evid. 403. United States v. Brannon, 18 M.J. at 185.

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Bluebook (online)
26 M.J. 652, 1988 CMR LEXIS 370, 1988 WL 54394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leprowse-usarmymilrev-1988.