United States v. Santistevan

22 M.J. 538, 1986 CMR LEXIS 2657
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 25, 1986
DocketNMCM 84 2485
StatusPublished
Cited by11 cases

This text of 22 M.J. 538 (United States v. Santistevan) 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. Santistevan, 22 M.J. 538, 1986 CMR LEXIS 2657 (usnmcmilrev 1986).

Opinion

MITCHELL, Senior Judge:

At a contested trial, appellant was convicted by general court-martial (officer members) of forcible sodomy, aggravated assault, kidnapping and assault with intent to commit sodomy. The approved sentence extended to a dishonorable discharge, eight years confinement and accessory punishment. Appellant challenges his conviction on the grounds that mere “incidental movement” of the victim of the sodomy offense cannot be considered kidnapping; the pleading of the kidnapping offense in these circumstances constituted unreasonable and prejudicial multiplication of charges; all of the acts alleged in the charged offense were so united in time, circumstance and impulse as to constitute a single offense; the military judge erred in overruling appellant’s objection to the victim’s hearsay identification of her assailant made to Hospitalman Second Class Fernandez, U.S. Navy; the military judge failed to instruct the members on the offense of aggravated assault being a lesser included offense of assault with intent to commit sodomy; that appellant was denied the opportunity for a response to the staff judge advocate review, citing United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1 (1975); and the convening authority’s action failed to credit the appellant with eighty-three days of pretrial confinement, citing United States v. Allen, 17 M.J. 126 (C.M.A.1984). The latter two assignments of error were rendered moot as a consequence of this Court’s order of 30 November 1984, in which this case was remanded for compliance with Goode and, in so complying, the convening authority also resolved the Allen problem. Upon return of the case to this Court, the appellant moved for a Dubay1 hearing into allegations of unlawful command influence. The motion was denied by this Court on 18 July 1985. The issue remains viable by way of incorporation by inference in the appellate pleadings.

Appellant and victim, one Mrs. R, met, at the appellant’s overture, while at a night spot near Marine Corps Air Station, Tustin, California during the evening of 5 and 6 December 1983. Their acquaintance was furthered when appellant apologized to her for a fight in which he had engaged. The two linked up with some of Mrs. R’s friends and moved their socializing to another bar. They broke up about 0130-0200. Mrs. R offered to drive appellant back to his barracks, since it was convenient to her route home. Appellant directed her to the barracks parking lot and to a relatively remote part thereof where they engaged in consensual social small talk. In time, appellant grabbed at Mrs. R and attempted to kiss and fondle her. After some struggling, during which Mrs. R sounded her car’s horn, the appellant cut short the discussion by producing a knife, with which he threatened her, and forced the victim to perform oral sodomy. As he became sufficiently excited to have an erection, she, either because she was unaccustomed to the technique or because of drink, or both, vomited. Appellant then forced Mrs. R out of her car and to the front of it. [540]*540He said he was going to take her to an area he pointed out to her about one hundred and forty feet from the car, an area from which they could not so easily be seen from the parking lot and roadways. At this point, Mrs. R, fearful of what might occur there, broke away and ran, screaming for help. Appellant ran after her, stabbing her on the top of the head, on the shoulders, neck and in the back, beating her to the ground. He repeatedly told her to shut up. Seeing car lights ahead, Mrs. R got up and ran toward them as the appellant broke off the attack and left. The victim was taken in an hysterical condition to the dispensary for treatment. It was there that she identified appellant as her assailant to HM2 Fernandez.

The appellant was convicted inter alia of kidnapping under the first two clauses of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (discipline prejudicing/service discrediting conduct). This Court is not faced with the jurisdictional issue which troubled the Court of Military Appeals in United States v. Bartole, 21 M.J. 234 (C.M.A.1986) and United States v. Scholten, 17 M.J. 171 (C.M.A.1984), where the defendants were prosecuted under the third clause of Article 134, UCMJ (Article 134), for violations of the federal civilian kidnapping law which constituted crimes and offenses not capital under military law. Bartole, citing Scholten, makes clear that kidnapping is a military criminal offense under the first two clauses of Article 134 and that the military offense is defined both in terms of the federal kidnap statute, 18 U.S.C. § 12022 et seq and the conduct being prejudicial to good order and discipline and/or service discrediting, as specified in the military statute. United States v. Bartole, 21 M.J. at 235. Consequently, we need not be concerned with whether or not the Government specifically proved that the offense occurred at a place within the special maritime and territorial jurisdiction of the United States. See 18 U.S.C. § 7. Since the instant trial occurred prior to the effective date of the Manual for Courts-Martial, 1984 (MCM, 1984), the provisions therein relating to kidnapping are not controlling, though, given their predication on the civilian federal statute, they are helpful to analysis. See Chapter 4, paragraph 92 and App. 21, paragraph 92, Analysis, MCM, 1984.

The appellant argues that the acts of forcing Mrs R to exit the car, by holding onto her sweater, and then moving her to the front of the car, as he sought to move her over the crest of an embankment to a point some one hundred and forty feet from Mrs. R’s car, were incidental to what the appellant views as a single continuing sodomitic attack, which began inside the car but had not been completed because appellant had not ejaculated by the time the movement took place.

We note at the outset that there is a paucity of federal kidnapping cases involving fact situations similar to the instant case, while state cases are numerous. State cases construing state statutes in the light of their legislative histories, however, are of limited utility in construing the federal statute. In general, statutes should be given reasonable construction to promote efficient enforcement of the law. State v. Berry, 200 Wash. 495, 93 P.2d 782 (1939). Laws should also be construed so as not to lead to injustice, oppression or an absurd consequence. Chatwin v. United States, 326 U.S. 455, 464, 66 S.Ct. 233, 237, 90 L.Ed. 198, 202 (1946); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 (3rd Cir.1979). A statute should not, however, be limited beyond its plain wording. United States v. DeLaMotte, 434 F.2d 289, [541]*541292 (2nd Cir.1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971).

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Bluebook (online)
22 M.J. 538, 1986 CMR LEXIS 2657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santistevan-usnmcmilrev-1986.