United States v. Lockett

7 M.J. 753, 1979 CMR LEXIS 678

• Court: U.S. Army Court of Military Review
• Decided: May 18, 1979
• Docket: CM 437752
• Status: Published

Opinion

OPINION OF THE COURT

FELDER, Judge:

The appellant was charged with committing sodomy by force and without the consent of the victim and communicating a threat to kill her “if you don’t do it.” He pleaded guilty to consensual sodomy. Although the Government attempted to prove forcible sodomy, the trial judge as a general court-martial found him guilty of consensual sodomy and communication of a threat in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 934. The sentence of a bad-conduct discharge, confinement at hard labor for seven months, total forfeitures and reduction to Private E-l was approved by the convening authority.

The appellant claims that since the sodomy and the threat occurred simultaneously, the trial judge erred by failing to consider the charges multiplicious for sentencing. In support of his contention, he calls our attention to several cases which hold that assault, assault with intent to commit rape, and indecent assault, when accompanied by a communication of a threat, are not separately punishable when committed at substantially the same time and place upon the same victim. United States v. Morris, 41 C.M.R. 731 (A.C.M.R.1970); United States v. Conway, 33 C.M.R. 903 (A.F.B.R.1963); United States v. Gethard, 33 C.M.R. 712, 718 (A.F.B.R.1962). The relief he seeks is that we reassess the sentence and disapprove the punitive discharge.

Forcing unnatural carnal copulation upon another is punishable by confinement at hard labor for a maximum of ten years. Whereas, consensual engagement in the act is limited to five years’ confinement. A victim who engages in sodomitic relations through fear of death does so forcibly. The threat in this case constitutes the force that generated the fear. Essentially, by threatening the victim, the appellant committed forcible sodomy. Since he chose to plead guilty to consensual sodomy and not guilty to communicating a threat, he risked conviction and punishment for two separate offenses, with eight years’ confinement being the authorized maximum.

* However, had he chosen to plead guilty to forcible sodomy and was also found guilty of communicating a threat, the charges would have been multiplicious for sentencing and the maximum imposable period of confinement would have been ten years. See United States v. Miller, 2 M.J. 546 (A.C.M.R.1976), rev’d on other grounds, 3 M.J. 292 (C.M.A.1977). The appellant benefited from his hard choice and has no basis for complaint.

The cases cited by him are discernible in fact and law from this case. They involve various forms of assaults combined with communication of a threat. An assault is an attempt or offer to do bodily harm with unlawful force or violence and communication of a threat embraces a declaration of intent to do bodily harm. Both charges relate to the infliction of physical injury. When committed simultaneously upon the same victim, they are properly a single offense for punishment purposes. Whereas, consensual sodomy can be committed independently of actual or threatened physical harm. Accordingly, we hold that consensual sodomy and communication of a threat under the circumstances of this case are dual offenses for sentencing.

Although several templates have been devised by the United States Court of Military Appeals to decide the multipliciousness of offenses (United States v. Harrison, 4 M.J. 332 (C.M.A.1978)), this case demonstrates vividly the wisdom of the words of the United States Navy Court of Military Review:

The determination of whether or not offenses are multiplicious for sentencing generally requires an examination of the facts in each instance to determine whether or not there has been an integration of events sufficient to result in essentially one offense. United States v. Kinion, 5 M.J. 930, 931 (N.C.M.R.1978).

The appellant also prays that we reassess the sentence because the staff judge advocate incorrectly advised the convening authority on the first page of the review that the maximum period of confinement was thirteen years, when in fact it was eight years. Apparently, the staff judge advocate computed the confinement on the basis of a conviction for communicating a threat and forcible sodomy rather than consensual sodomy.

The difference between the actual and stated authorized maximum confinement is de minimus. A copy of the review was served upon the trial defense counsel pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975). Since he did not rebut it, the error was waived without prejudice. United States v. Turner, 2 M.J. 778 (A.C.M.R.1976), pet. denied, 5 M.J. 1107 (CMA 1976). Moreover, it is unlikely that either the trial judge or the convening authority would have reduced the sentence absent the multiplicity and post-trial review issues. In our opinion, the sentence imposed upon the appellant is extremely lenient for the despicable acts he committed.

Accordingly, the findings of guilty and the sentence are affirmed.

Senior Judge MITCHELL and Judge DRIBBEN concur.

The maximum period of confinement for communicating a threat is three years. Parenthetically, we observe in military law often a service member is subjected to a more severe punishment by threatening to commit a crime than he would be by perpetrating it. Manual for Courts-Martial, United States, 1969 (Revised edition) paragraph 127c.