United States v. Orben

28 M.J. 172, 1989 CMA LEXIS 1078, 1989 WL 51416
CourtUnited States Court of Military Appeals
DecidedJune 5, 1989
DocketNo. 59,340; ACM 25865
StatusPublished
Cited by10 cases

This text of 28 M.J. 172 (United States v. Orben) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Orben, 28 M.J. 172, 1989 CMA LEXIS 1078, 1989 WL 51416 (cma 1989).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

A military judge, sitting as a general court-martial at Grand Forks Air Force Base, North Dakota, tried appellant on a charge that from October 1, 1985, to November 15, 1985, he committed sodomy with a child under the age of 16 years, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925, and that he had been guilty of various types of indecent conduct with minors, in violation of Article 134, UCMJ, 10 USC § 934. Orben was acquitted of the sodomy but found guilty of all four specifications under the other Charge. These were:

[173]*173Spec Summary of Offense

1 From September 15, 1985, to January 11,1986, he committed indecent acts upon the body of Thomas Thorp, a male under 16 years of age, by placing his hands on his legs, thighs, and private parts and kissing his mouth “with intent to arouse, appeal to, and gratify the lust, passion and sexual desires of” appellant and Thorp;
2 From August 1, 1985, to October 31, 1985, he orally communicated to Mario Perez, a child under 16, “certain indecent language, to wit: that there was no difference between a man’s anus and a woman’s vagina when sexual intercourse is involved, and that if” Mario Perez “were in prison for three years he would make love to a man, or words to that effect”;
3 Between July 1, 1985, and August 31,1985, he took “indecent liberties with Eric Hricak, a male under” 16, “by showing ... [him] several magazines containing numerous pictures depicting the full body nudity of adults and children, with intent to arouse and appeal to the lust, passion and sexual desires of” Hricak and Orben;
4 Between July 1, 1985, and August 31, 1985, he “committ[ed] an indecent act upon the body of Eric Hricak, a male under 16 years of age ____by placing his hand on his upper leg, with intent to arouse, appeal to, and gratify the lust, passion, and sexual desires of” Hricak and appellant.

The military judge sentenced Orben to a dishonorable discharge, confinement for 1 year, total forfeitures, and reduction to the lowest pay grade. The convening authority approved this sentence; and the Court of Military Review affirmed the findings and sentence. We granted review on these two issues:

I

WHETHER APPELLANT’S CONDUCT OF DISPLAYING A NONPORNOGRAPHIC MAGAZINE TO ERIC HRICAK CONSTITUTED THE TAKING OF INDECENT LIBERTIES IN VIOLATION OF ARTICLE 134.

II

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY NOT FULLY COMPLYING WITH HIS REQUEST FOR SPECIAL FINDINGS.

The offenses of which Orben was convicted all involved dependent children of servicemembers assigned to Grand Forks Air Force Base, where appellant had arrived in July 1985. According to the government evidence, two months later he met Thomas Thorp, then 14 years old, at the video-arcade section of the base bowling alley. Thorp testified that he had seen Orben on various occasions thereafter. On one outing together, appellant had showed him magazines1 which Thorp described as “dirty” and which contained pictures of totally nude people. Orben had stated that these magazines came from Europe. On various occasions appellant had grabbed Thorp’s inner thigh; and once he had kissed him on the lips.

Mario Perez, a 13-year old whom Orben had met at the video arcade also, testified that he had seen appellant there three or four times a week. Orben had used language like that alleged in specification 2; and on one occasion, he had placed his hand on Mario’s thigh and begun to rub it. Also, on one trip, Orben had displayed to Mario three magazines2 — one of which had on the [174]*174cover “a naked boy” who appeared to be 10 to 12 years old and did not have much pubic hair. In looking through this magazine, Mario had seen several naked people, who ranged “[f]rom very young to about my age and older.” About half the pictures he saw were of males, and the other half were of females.

Eric Hricak testified that he had been 12 years old when he had met Orben at the video arcade in July 1985. Appellant had taken him to the base movie theater a couple of times. Once while Eric was in appellant’s car, the latter had placed his hand on Eric’s inner thigh.

On another occasion, Eric and a friend of his were sitting with Orben in his car when appellant had produced a Playboy magazine and showed it to them. Eric had seen pictures of a woman nude from the waist up. On another occasion, while alone with Orben in his car, appellant had pulled out a magazine which he had stated was German, opened it up, and given it to Eric. He had seen “kids standing there naked” who had appeared “younger than” himself. Their genitals had been fully displayed in the magazine’s pictures.

At trial and on appeal, Orben has contested the sufficiency of the allegations in specification 3 and the evidence offered in its support. In appellant’s view, he could not properly be convicted of indecent liberties with Eric Hricak because the magazines which he showed Eric and the pictures therein were not pornographic or obscene. Moreover, appellant insists that showing these magazines to children was constitutionally protected conduct under the First Amendment.

According to the Manual for Courts-Martial, United States, 1984, the crime of taking indecent liberties with a child must be proved by evidence that the accused committed a certain act in the presence of a child under 16 years of age, which amounted to the taking of indecent liberties with the child and was “with intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both.” See para. 87b(2)(e), Part IV. The discussion in the Manual for Courts-Martial, United States, 1969 (Revised edition), was to the same effect. See para. 213/(3).

In United States v. Scott, 21 MJ 345 (CMA 1986), we considered whether showing two young girls “a magazine designed to appeal to the prurient interest” might constitute a violation of Articles 133 and 134, UCMJ, 10 USC §§ 933 and 934, respectively. First, we reaffirmed “that the offense of taking indecent liberties with a child may be committed without any physical contact or touching.” 21 MJ at 348. See also United States v. Brown, 3 USC-MA 454, 13 CMR 10 (1953). Next, we concluded that “showing a child pornographic pictures” can authorize a conviction for “taking indecent liberties” with a child because of the strong “policy of protecting the morals of children.” Id. at 349 (footnote omitted). Finally, we held that Scott’s “first amendment right to communicate with others” had not been infringed because “the right to communicate to children of tender ages is less extensive than the right to communicate to adults. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).” 21 MJ at 349.

Because our opinion in Scott referred to “pornographic pictures,” see 21 MJ at 349, appellant now contends that only a display of such pictures constitutes indecent liberties and that a display of pictures which cannot be classified as “pornographic” or “obscene,” see 21 MJ 349 n. 3, does not constitute taking indecent liberties.

We reject this contention.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Sergeant JASON L. BAILEY
Army Court of Criminal Appeals, 2024
United States v. Rodriguez
Court of Appeals for the Armed Forces, 2019
United States v. Burkhart
72 M.J. 590 (Air Force Court of Criminal Appeals, 2013)
United States v. Sollmann
59 M.J. 831 (Air Force Court of Criminal Appeals, 2004)
United States v. Marrie
39 M.J. 993 (U S Air Force Court of Military Review, 1994)
United States v. Robertson
37 M.J. 432 (United States Court of Military Appeals, 1993)
United States v. Kenerson
34 M.J. 704 (U.S. Army Court of Military Review, 1992)
United States v. Robertson
33 M.J. 832 (U.S. Army Court of Military Review, 1991)
United States v. Choate
32 M.J. 423 (United States Court of Military Appeals, 1991)
United States v. Kyle
32 M.J. 724 (U S Air Force Court of Military Review, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 172, 1989 CMA LEXIS 1078, 1989 WL 51416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-orben-cma-1989.