United States v. Specialist MICHAEL T. McNAUGHTON

• Court: Army Court of Criminal Appeals
• Decided: April 16, 2009
• Docket: ARMY 20090089
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before GALLUP, TOZZI, and JOHNSON Appellate Military Judges

UNITED STATES, Appellant v. Specialist MICHAEL T. McNAUGHTON United States Army, Appellee

ARMY MISC. 20090089

Headquarters, Fort Carson Debra Boudreau, Military Judge Colonel Michael Meier, Staff Judge Advocate

For Appellant: Captain Adam S. Kazin, JA (argued); Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Lieutenant Colonel Steven P. Haight, JA; Captain Adam S. Kazin, JA (on brief); Captain Philip M. Staten, JA (additional pleadings).

For Appellee: Major Mark I. Goodman, JA (argued); Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, Major Grace M. Gallagher, JA; Major Mark I. Goodman, JA (on brief); Major Bradley M. Vorhees, JA (additional pleadings).

16 April 2009

-------------------------------------------------------------------------- SUMMARY DISPOSITION AND ACTION ON APPEAL BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE -------------------------------------------------------------------------

Per Curiam: The government appealed the military judge’s decision pursuant to Article 62(a)(1)(A), Uniform Code of Military Justice, 10 U.S.C. §§ 862 [hereinafter UCMJ] and presented the following assignment of error: THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN SHE DISMISSED SPECIFICATION 2 OF CHARGE II ON THE GROUNDS THAT ASSIMILATION OF A STATE AGGRAVATED INCEST STATUTE IS PREEMPTED BY ARTICLE 120, UCMJ. After considering the record, briefs, oral arguments, and controlling legal authority, we grant the government’s appeal and vacate the military judge’s decision to dismiss Specification 2 of Charge II. When deciding an appeal under Article 62, UCMJ we “may act only with respect to matters of law.” UCMJ, art. 62(b). Questions of law are reviewed de novo. United States v. Kosek, 41 M.J. 60, 63 (C.M.A. 1994). First, we find that aggravated incest, as defined by Colo. Rev. Stat. § 18- 6-302, is not proscribed by either the UCMJ or an applicable Federal Criminal Code. See Lewis v. United States, 523 U.S. 155, 164-66 (1998). Further, we find the state statute does not interfere with a federal policy, does not effectively rewrite a carefully considered federal law, and there is no federal intent to occupy the field as would preclude the use of this particular state statute. Id. Second, we find the military judge improperly concluded Congress intended that Article 120, UCMJ cover all sexual offenses, in a complete way. See US v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). To the contrary, we find Congress did not intend to limit prosecution for aggravated incest to Article 120, UCMJ; nor is aggravated incest a residuum of elements of a specific offense listed in the code. United States v. McGuinness, 35 M.J. 149, 151-52 (C.A.A.F. 1992) (quoting United States v. Wright, 5 M.J. 106, 100-11 (C.M.A. 1978)). The incest statute is a separate offense proscribed by the Colorado Revised Code and is a crime that centers on the familial relationship. Colo. Rev. Stat. § 18-6-301 and 302. As such, the statute at issue fills a gap in the criminal law and may properly be assimilated. See generally, United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999). We hold that the Colorado incest statute at issue in this case is not preempted by Article 120, UCMJ and the military judge erred in dismissing the challenged specification. Conclusion Based upon our de novo review, we hold that the military judge erred as a matter of law. Accordingly, the military judge’s dismissal of Specification 2 of Charge II is vacated. Appellee’s court-martial may proceed in accordance with Rule for Courts-Martial 908(c)(3). FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court