United States v. McGinty

38 M.J. 131, 1993 CMA LEXIS 126, 1993 WL 413843

Opinions

Opinion of the Court

WISS, Judge:

A general court-martial composed of a military judge alone tried Commander McGinty in a contested case and convicted him of wrongful use of alcohol aboard ship (2 specifications); attempt to commit an indecent act (charged as indecent assault); indecent assault (another incident entirely); and fraternization (2 specifications).

* The judge sentenced appellant to a dismissal and confinement for 6 months. The convening authority approved these results but suspended the confinement for 1 year, and the Court of Military Review affirmed without opinion on June 19, 1992.

We granted appellant’s petition for review to consider his claim that the evidence was insufficient as a matter of law to prove his guilt of the attempt to commit an indecent act. 37 MJ 26. We now hold, contrary to his assertion, that there is some evidence from which a reasonable factfinder could find beyond a reasonable doubt each element of that offense. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The evidence surrounding the incident in question was sharply contested. Before us, appellant relies to a substantial degree on his version of the evidence; but we may not similarly rely upon that, to the extent that it differs from the prosecution’s evidence. As we stated in United States v. Blocker, 32 MJ 281, 284 (CMA 1991), “In resolving legal-sufficiency questions, this Court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” From that vantage point, there can be no serious conclusion except that the evidence is legally sufficient.

Appellant’s attempt to commit an indecent act was described as “running his fingers through the hair of the said [victim] and by hugging him____” Thus, the task of the military judge as the factfinder was to decide whether the specified acts occurred and, if so, whether they constituted an attempt at committing an indecent act.

Contrary to the testimony of the alleged victim, appellant assertively denied both of the physical acts charged. Yet, the military judge’s finding of guilt unequivocally commands the conclusion that appellant simply was not believed on that difference in testimony.

As to whether these physical actions were an attempt to commit an indecent act, the factfinder had to answer two questions: 1) Were the specified actions “done with specific intent to commit an offense” under the Uniform Code of Military Justice (Art. 80(a), UCMJ, 10 USC § 880(a); para. 4b(2), Part IV, Manual for Courts-Martial, United States, 1984)—here, an indecent act (see Art. 134, UCMJ, 10 USC § 934; para. 90b)—and, 2) did the actions go beyond “mere preparation” and, instead, constitute “a direct movement toward the commission of the offense”? (Art. 80(a); para. 4c(2)).

Certainly not every personal touching permits an inference that it is done with intent to commit an indecent act. The touching may not be of a sexual nature at all but, instead, may be one of friendship. Moreover, even if done in the context of being a step toward sexual activity, a personal touching is not with intent to commit an indecent act unless the sexual activity would itself be indecent for some reason. See United States v. Stocks, 35 MJ 366, 367 (CMA 1992). However, where the circumstances as a whole and the events both before and after the touchings depict a sexually oriented overture that is headed toward an activity that would legally constitute an indecent act, then rational fact-finders may reasonably conclude that the personal touchings in that context were with intent to commit an indecent act. See United States v. Holland, 12 USCMA 444, 445, 31 CMR 30, 31 (1961) (“Under some circumstances a particular act may be entirely innocent; under other conditions, the same act constitutes a violation of the Uniform Code” as being wrongful and indecent.); United States v. Sanchez, 11 USC-MA 216, 218, 29 CMR 32, 34 (1960) (“True it is that under some circumstances a mere exhibition of private parts might be accidental or no more than indecent exposure, but under the facts of this case the exposure was indecent, lewd, and lascivious.”). See generally United States v. Schoof, 37 MJ 96 (CMA 1993) (discussion of law of attempt). That is the case here. See generally United States v. Stocks, supra (distinguishing between lawfulness of homosexual activity and heterosexual activity).

Likewise, we are satisfied that the evidence offered the factfinder a legally sufficient basis for concluding that the specified actions were “a substantial step— some overt act, beyond mere preparation— toward accomplishing” a goal of sexual activity. See United States v. Schoof, 37 MJ at 102. Sexual posturing, preening, and socializing may be found in context to not cross that threshold, but the factfinder was free here to conclude that the personal touchings did: that is, that they were affirmative steps toward sexual activity—sexual activity that here would have been unlawful and, thus, indecent. See id.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX and CRAWFORD concur.

Alleged as violations of Articles 92 and 134, Uniform Code of Military Justice, 10 USC §§ 892 and 934, respectively.