United States v. Moody

10 M.J. 845, 1981 CMR LEXIS 786
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 20, 1981
DocketNCM 80 2204
StatusPublished

This text of 10 M.J. 845 (United States v. Moody) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Moody, 10 M.J. 845, 1981 CMR LEXIS 786 (usnmcmilrev 1981).

Opinion

EDWARDS, Judge:

Pursuant to his pleas appellant was found guilty of forcible sodomy and commission of an indecent act in violation of Article 125 and Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934, respectively. He was sentenced by a general court-martial consisting of members to confinement at hard labor for 6 months and a bad-conduct discharge. The convening authority approved the sentence but suspended execution of the bad-conduct discharge and confinement in excess of 4 months. Appellant has assigned the following errors:

I
THE APPELLANT’S PLEA OF GUILTY TO CHARGE III, FORCIBLE SODOMY, WAS IMPROVIDENT IN THAT APPELLANT’S TESTIMONY EVIDENCES A POSSIBLE BELIEF ON HIS PART THAT THE VICTIM CONSENTED TO THE ACT.
II
THE TRIAL COUNSEL’S PRESEN-TENCE ARGUMENT TO THE COURT MEMBERS WAS IMPROPER AND INFLAMMATORY.
A. THE TRIAL COUNSEL IMPROPERLY SUGGESTED THAT THE COURT MEMBERS TAKE INTO ACCOUNT THE VICTIM’S FAMILY IN DETERMINING AN APPROPRIATE SENTENCE.
B. THE TRIAL COUNSEL IMPROPERLY ARGUED, FACTS NOT IN EVIDENCE.
Ill
THE COURT -MARTIAL WAS NOT PROPERLY CONVENED IN THAT THE LOCATION IN WHICH IT WAS CONDUCTED WAS NOT THE LOCATION ESTABLISHED BY THE CONVENING ORDER.

I

Appellant pleaded guilty at trial to forcible sodomy in violation of Article 125, UCMJ, 10 U.S.C. § 925. Now appellant asserts that “[h]is statements reflect a strong possibility that he may have believed the prosecutrix may have consented in some manner.” Appellant’s Brief at 7.

The following colloquy between the military judge and appellant sets forth the circumstances surrounding the use of the knife in relation to the sodomy offense:

[847]*847MJ: In pleading guilty to the specification do you admit that the act you engaged in with [prosecutrix] was done by' force? Do you understand that?
ACC: Yes, sir, I do.
MJ: Now I asked you earlier if you had led her to believe in any way that you would harm her with this knife if she did not perform this act and you indicated no. Now — then you said something about perhaps she may have thought that I would have harmed her. Is that correct? ACC: I never threatened her with the knife but I knew — verbally threatened her with a knife.
MJ: Now excuse me. What did you say? ACC: Verbally. I never told her I was going to do anything to her with the knife but I knew she was scared of the knife and that was the reason why she was having- — doing sex with me — having oral sex with me.
MJ: Alright. Why was she afraid of the knife?
ACC: Afraid I might use it against her, to do her bodily harm.
MJ: What were you doing that may have caused her to believe this?
ACC: Nothing really. Just the knife being there and her seeing the knife.
MJ: Where was the knife?
ACC: In my left hand. It was — when I first — when I first picked it up it was in my right hand and I switched it to my left.
MJ: Was that the hand toward her? ACC: The right was towards her. I picked it up with my right and switched it to my left hand, and then she could— realized she was scared of the knife, she had seen it, and she was scared I was going to use it against her, the reason why she did the sex.
MJ: Do you believe that that’s why she had sex with you?
ACC: Yes, sir.
MJ: Because she was afraid that you might harm her with the knife?
ACC: Yes, sir.
MJ: About what you indicated before, you didn’t say you — you would harm her with the knife, Is that correct?
ACC: Yes, sir. I never said it.
MJ: But by holding a knife, and by your actions do you believe that she engaged in this act because she was afraid that you might harm her with the knife? ACC: Yes, sir.
MJ: And so doing, do you admit that this act was done by force?
ACC: Yes, sir.
MJ: Did [prosecutrix] consent to this act? ACC: No, sir.
MJ: Was this against her consent?
ACC: Yes, sir.

(R. 11 -12).

Appellant now argues that the statements made by him during the providency plea evidence a possible belief on his part that the victim consented to the act. Article 45, UCMJ, 10 U.S.C. § 845, requires a plea of guilty to be in accordance with actual facts. United States v. Moglia, 3 M.J. 216, 218 (CMA 1977). If appellant had presented matters inconsistent with a plea of guilty, Article 45, UCMJ, 10 U.S.C. § 845, would require rejection of that plea. The test as to whether the matters presented are inconsistent was set out to be whether there was a substantial indication of direct conflict between the accused’s plea and his following statements. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). Appellant’s responses make it clear that he believed that the victim was afraid of the knife he held in his left hand, that this fear is why she had sex with him, and that the act was without the consent of the victim. It is immaterial whether appellant brandished the knife in a threatening manner or gesture. From appellant’s statements we can see he believed that he had done all that was necessary with the knife to assure the victim’s compliance under duress to his wishes. Considering all the surrounding circumstances it is obvious the victim submitted because of a reasonable fear of grievous bodily harm. Appellant’s words and actions were subtle but there was no mistaking his intent to engage forcibly in [848]*848illicit sexual relations without the consent of the victim.

II

During the presentencing phase, the trial counsel made the following suggestion to the court members during his closing argument:

Well there is another family involved in this matter, and that is the [prosecutrix’s] family. [Prosecutrix] has a husband, a petty officer on the USS EDWARD McDONNELL, as shown in the Appellate Exhibit which has been submitted to the court members. And, certainly, that’s one of the families that should be considered in your deliberations on this matter because as the defense counsel stated what has been done cannot be undone.

(R. 62). In addition the trial counsel stated in his closing argument to the court members the following:

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Related

United States v. William Robert Cook
592 F.2d 877 (Fifth Circuit, 1979)
United States v. Wood
18 C.M.A. 291 (United States Court of Military Appeals, 1969)
United States v. Moglia
3 M.J. 216 (United States Court of Military Appeals, 1977)
United StateS v. Ware
5 M.J. 24 (United States Court of Military Appeals, 1978)
United States v. Tanksley
7 M.J. 573 (U.S. Army Court of Military Review, 1979)
United States v. Lania
9 M.J. 100 (United States Court of Military Appeals, 1980)

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Bluebook (online)
10 M.J. 845, 1981 CMR LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moody-usnmcmilrev-1981.