United States v. Rinkes

53 M.J. 741, 2000 CCA LEXIS 184, 2000 WL 1052972
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJuly 11, 2000
DocketNMCM 20000264
StatusPublished
Cited by4 cases

This text of 53 M.J. 741 (United States v. Rinkes) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Rinkes, 53 M.J. 741, 2000 CCA LEXIS 184, 2000 WL 1052972 (N.M. 2000).

Opinion

DeCICCO, Chief Judge:

In this case, we hold that the offenses of taking indecent liberties with a child and indecent exposure are neither multiplicious, nor do they, under the facts of this case, constitute an unreasonable multiplication of charges.

Petty Officer Rinkes pleaded guilty at a special court-martial to both taking indecent liberties with a child and indecent exposure under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. During the providence inquiry, he stated that while in the bedroom of his government-assigned quarters at the Naval Submarine Base at Kings Bay, Georgia, he was standing at a window with the blinds open. Across the street he could see LM, whom he knew to be a 12-year-old female. He then unbuttoned and unzipped his shorts and began masturbating while looking at LM. He noticed LM look at him while he masturbated. An adult female, MM, who was near LM, also saw the appellant. The appellant recalled seeing both LM and MM looking and pointing at him as he continued to masturbate.

After the entry of his guilty pleas, but before findings were entered, the defense moved to dismiss the indecent exposure offense on the basis of multiplicity, citing United States v. Robba, 32 M.J. 771 (A.C.M.R. 1991). The military judge denied the motion [742]*742as far as multiplicity for findings, but he ruled that the offenses were multiplicious for sentencing.1 Record at 37-41. The military judge later sentenced Petty Officer Rinkes to confinement for 90 days, reduction to pay grade E-1, and a bad-conduct discharge. The convening authority approved the sentence.

In this appeal, the appellant argues that the offenses of taking indecent liberties with a child and indecent exposure are multiplicious, or in the alternative, that they constitute an unreasonable multiplication of charges. The Government replies that the military judge did not abuse his discretion when he denied the appellant’s motion. The Government also argues that the offenses do not constitute an unreasonable multiplication of charges.

In Robba, the Army Court of Military Review found the offenses of taking indecent liberties with a child and indecent exposure to be multiplicious. The Court cited United States v. Baker, 14 M.J. 361 (C.M.A.1983) as authority for its holding. Robba, 32 M.J. at 774. In United States v. Teters, 37 M.J. 370 (C.M.A.1993), however, the Court of Military Appeals rejected Bakers “fairly embraced test” in favor of the “elements” test of Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The new rule to be applied in multiplicity cases where the same act or transaction violates two distinct statutory provisions is whether each provision requires proof of an additional element that the other does not. Teters, 37 M.J. at 377. In United States v. Oatney, 45 M.J. 185 (1996), the Court extended the rationale of Teters to a case involving multiple specifications under Article 134, UCMJ. The Court found that the offenses of obstruction of justice and communication of a threat were separate for findings and sentencing, even though the threat was the means used to obstruct justice. The Court had held-in Morrison that if offenses are found separate for findings, then they are separate for sentencing.

Applying the principles of Teters and Oatney, we note that the elements of indecent exposure under Article 134, UCMJ, are:

(1) That the accused exposed a certain part of his body to public view in an indecent manner;
(2) That the exposure was willful and wrongful; and
(3) That, under the circumstances, his conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States (1998 ed.), Part IV, ¶ 88b. The elements of taking indecent liberties with a child (without physical contact), on the other hand, are:

That the accused committed a certain . act;
That the act amounted to the taking of indecent liberties with a certain person;
That the accused committed the act in the presence of this person;
That this person was under 16 years of age and not the spouse of the accused;
That the accused committed the act with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

MCM, Part IV, ¶ 87b(2).

In looking at the elements of the statutes violated, both offenses are listed in the Manual as offenses under Article 134, UCMJ. This statute has only two elements: that the accused did or failed to do a certain act; and that the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM, Part IV, ¶ 60(b). In cases involving specifications [743]*743under Article 134, UCMJ, the “elements” approach is applied to the elements of the offense listed by the President in the Manual. Oatney, 45 M.J. at 188.

The taking of indecent liberties with a child does not require the exposure of a part of the accused’s body in an indecent manner. It can be accomplished by words or other acts not amounting to exposure. MCM, Part IV, ¶ 87c(2). It also does not require the exposure to be done in public view. Indecent exposure is not listed as a lesser-included offense of taking indecent liberties. MCM, Part IV, ¶ 87d.

On the other hand, indecent exposure does not require the taking of indecent liberties with a person, that the exposure be before a person who is not yet 16 years-old and not the spouse of the accused, or that it be done with the intent to arouse, appeal to, or gratify the sexual desires of the accused and/or the victim.

Since each offense requires proof of a different element, the “elements” test is met. We also have discerned no Congressional intent to indicate that these offenses should be multiplicious. In fact, they address separate societal interests. The proscription against indecent exposure is concerned with protecting the morals of society at large. The prohibition against taking indecent liberties with a child is more narrowly focused on protecting the safety, morals, and well-being of children. It is a more serious offense and carries a greater maximum punishment at a general court-martial.2 Therefore, based on the above, we conclude that the offenses of taking indecent liberties with a child and indecent exposure are not multiplicious, even where the means of taking the liberties was accomplished, at least in part, by the appellant’s indecent exposure. Oatney, 45 M.J. at 188-89.

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Bluebook (online)
53 M.J. 741, 2000 CCA LEXIS 184, 2000 WL 1052972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rinkes-nmcca-2000.