United States v. Neblock

45 M.J. 191, 1996 CAAF LEXIS 80, 1996 WL 787463
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1996
DocketNo. 94-5010; CMR No. 30419
StatusPublished
Cited by44 cases

This text of 45 M.J. 191 (United States v. Neblock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Neblock, 45 M.J. 191, 1996 CAAF LEXIS 80, 1996 WL 787463 (Ark. 1996).

Opinions

Opinion

SULLIVAN, Judge:

On November 10, 1992, Airman Neblock was tried1 by a general court-martial at Edwards Air Force Base, California, on one specification each of committing indecent acts and of committing indecent liberties (both with the same female under 16), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. In accordance with the pleas, the military judge found him guilty of these offenses with exceptions and substitutions as to the dates of both offenses. (Both specifications now state “on divers occasions between on or about March 1, 1992, and on or about May 31, 1992.”) He then sentenced Airman Neblock to a bad-conduct discharge, confinement and forfeiture of $250.00 pay per month for 48 months, and reduction to E-l. The convening authority approved this sentence on February 5, 1993.

The Court of Military Review2 on July 21, 1994, modified the findings of guilty in this case. It consolidated the indecent-acts specification and the indecent-liberties specification into one joint specification of committing indecent acts and liberties. It also reassessed the sentence, reducing confinement from 48 months to 42 months, but otherwise affirmed the approved punishments. 40 MJ 747, 751-52.

On September 6,1994, the Judge Advocate General of the Air Force forwarded this ease to our Court for review of the following issues:

I
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT CONCLUDED THAT INDECENT LIBERTIES AND INDECENT ACTS WITH A CHILD STATE THE SAME OFFENSE.
II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT HELD THAT ALL OF [THE ACCUSED’S] ACTS ALLEGED IN SPECIFICATION 1 AND ALL OF [THE ACCUSED’S] ACTS ALLEGED IN SPECIFICATION 2 CONSTITUTED A SINGLE COURSE OF CONDUCT FOR WHICH HE COULD ONLY BE PUNISHED ONCE.

We hold that the above-noted offenses are alternative ways of committing the same military offense of “committing indecent acts or taking indecent liberties with a child.” See United States v. Brown, 3 USCMA 454, 13 CMR 10 (1953).' We further hold that this military offense is not a continuous offense as a matter of law so as to permit consolidation of the factually discrete specifications ordered by the appellate court below. See United States v. Johnson, 38 MJ 88 (CMA 1993); see generally Sanabria v. United States, 437 U.S. 54, 74 n. 33, 98 S.Ct. 2170, 2184 n. 33, 57 L.Ed.2d 43 (1978).

Airman Neblock was found guilty of the following offenses:

SPECIFICATION 1: In that AIRMAN FIRST CLASS RICHARD A. NEB-LOCK, JR., ... did, at or near California City, California, on divers occasions between on or about 1 March 1992, and on or about 31 May 1992, commit indecent acts [193]*193upon the body of [JW], a female under 16 years of age, not the wife of said A1C Neblock, by touching her private parts and inserting his finger in her vagina, and having her place her hands on his penis, with intent to gratify the sexual desires of the said A1C Neblock. SPECIFICATION 2: In that AIRMAN FIRST CLASS RICHARD A. NEB-LOCK, JR., ... did, at or near California City, California, on divers occasions between on or about 1 March 1992 and on or about 31 May 1992, take indecent liberties with [JW], a female under 16 years of age, not the wife of said A1C Neblock, by exposing his penis and masturbating in the presence of [JW], with the intent to gratify the sexual desires of the said A1C Neb-lock.

(Emphasis added.) Prior to pleading guilty, he moved that one of these specifications be dismissed as multiplicious with the other. However, he requested the judge to defer his ruling on this motion until after the providence inquiry occurred and the stipulation of fact was admitted into evidence.

The stipulation of fact states in pertinent part:

5. On or about 1 May 1992, the Accused took [J] to his bedroom and closed the door and the blinds. The Accused took off his pants and underwear, [J] took off her pants and panties, and they laid on his bed wearing only their shirts. The Accused showed [J] his penis and had [J] touch his penis. The Accused had an erection during this time. Then the Accused inserted his finger into [J]’s vagina and moved his finger around inside of her vagina in a circular motion. [J] said that it “tickled.” The Accused told [J] to not tell her mother about what they did.
6. On or about 3 May 1992, the Accused and [J] went into [J]’s bathroom, and they both took off their clothes. [J] touched the Accused’s penis, and he had an erection. The Accused then masturbated himself in front of [J] and ejaculated into some toilet paper and showed the semen to [J]. The Accused then touched [J] in the vaginal area and put his finger into her vagina. Again, the Accused told [J] not to tell anyone what they had done. The Accused told [J] that if he wanted to do this again that [J] should tell him, “No.”
7. There was another incident that occurred in [J]’s bedroom. [J] was in the bathroom and came out and pointed at her vaginal area and said that it hurt and asked the Accused to rub some vaseline on it. While the Accused was rubbing the vaseline in her vagina, [J] said it “tickled.” The Accused unzipped his pants and showed [J] his penis, and [J] touched his penis and scrotum.
8. If [J] is called to testify, she can recall approximately eight times that the Accused touched her in the vaginal area. The Accused recalls touching [J] in the vaginal area and inserting his finger into her vagina approximately three to five times, however, there could have been more times that he forgot.
9. [J] also recalls several times that she observed the Accused masturbating himself and ejaculating in front of her. The Accused recalls that he masturbated in front of [J] and ejaculated about two to three times. The Accused knows that he did not masturbate every time he touched her in the vaginal area, however, there could have been more instances that he could not remember.

The military judge subsequently denied the defense’s multiplicity motion as follows:

MJ: The court will come to order.
For purposes of the motion, I incorporate the stipulation of fact and the accused’s responses during the providence inquiry. Based on these two items, I find that there are no incidents of masturbation in [JW]’s presence that was not accompanied by an indecent touching. However, there were at least two occasions when the accused touched [JW] and she touched him as alleged in specification 1, when there was no masturbation.
When reviewing the case law, as i[s] often in the case of multiplicity, you can find almost a case for every proposition. These cases have a tendency to turn on [194]*194their facts. After review of the cases provided by the defense, and some cases I reviewed on my own, I concluded that although these offenses are similar, there is a difference of elements and there is a difference of societal norms, such that I find that these are separate offenses for findings. The motion for findings — multiplicity for findings is denied.

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Bluebook (online)
45 M.J. 191, 1996 CAAF LEXIS 80, 1996 WL 787463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-neblock-armfor-1996.