United States v. Whitcomb

34 M.J. 984, 1992 CMR LEXIS 340, 1992 WL 63016
CourtU.S. Army Court of Military Review
DecidedMarch 27, 1992
DocketACMR 9100439
StatusPublished
Cited by1 cases

This text of 34 M.J. 984 (United States v. Whitcomb) is published on Counsel Stack Legal Research, covering U.S. Army 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. Whitcomb, 34 M.J. 984, 1992 CMR LEXIS 340, 1992 WL 63016 (usarmymilrev 1992).

Opinion

OPINION OF THE COURT

CREAN, Senior Judge:

The appellant, contrary to his pleas, was found guilty by a general court-martial composed of officer members of indecent acts with a child under the age of 16 (two specifications), and taking indecent liberties with a child under the age of 16 (three specifications), in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to Private El.

On 24 August 1990, the appellant committed an indecent act on 13-year-old Lois, by rubbing her breast under her blouse and bra, while Lois was visiting his quarters. Lois did not immediately report the encounter with the appellant. It was only a few months later after she and another student were sent to see the school counselor concerning an argument when this incident came to light. During the counseling session, Lois related the events without mentioning the appellant’s name. The counsel- or continued to question her, obtained the appellant’s name from Lois, and notified the authorities. This incident formed the basis of Specification 1 of Charge I.

During a search of the appellant’s apartment in relation to the offense with Lois, a roll of undeveloped film was found. The film was developed and showed eight photographs (Pros.Exh. 1-8) of two other girls from the same housing area in various poses. These poses included one photograph of each of the girls lying on the sofa; one of both girls on the couch holding each others arms; one of both girls sitting on a bed with a sheet pulled up to their necks; one of both girls facing backward with their heads between their legs; one of each girl wearing a short fur coat and sitting in a chair; and one with the girls sitting on either side of the appellant on the couch.

The girls, Lisette and Tiffany, testified that in the summer of 1990, the appellant had invited a number of neighborhood children to his apartment to watch movies. They watched one and part of another before leaving to go home to eat. Since they had not finished the second movie, Lisette and Tiffany returned to see the end of the movie. The girls sat on the couch while the appellant sat on the floor. During a funny part of the movie, the appellant put his hand on Lisette’s arm and leg and ran his hand from her thigh to her knee. Lisette testified that she did not feel uncomfortable from this touching. This act was the basis of Specification 2 of Additional Charge I.

After finishing the movie, the girls played on the appellant’s computer and [987]*987then he asked them if they wanted to have their picture taken. The appellant then took the eight photographs mentioned above. While he was taking the photographs, the appellant helped Tiffany take the strap of her bathing suit off her neck and tie it around her back. He also wanted her to put a foxtail fur around her neck. Tiffany did not want to pose with the fox fur so she told the appellant to let Lisette do it. Lisette deliberately broke the foxtail fur because she did not want to wear it. During all of the photographs, the girls were dressed in their tops and shorts and the appellant made no lewd comments or suggestions. Most of the poses were done at the suggestion of the appellant. However, it was Lisette’s idea that they wear the fur coat. In all the photographs, the girls were smiling. The taking of the photographs were the basis of Specifications 1 and 2 of Additional Charge II. The appellant’s removal of the strap of Tiffany’s bathing suit and having her put the foxtail fur around her neck was the basis of Specification 3 of Additional Charge I.

The appellant, through counsel, asserts three assignments of error. First, the evidence is legally and factually insufficient to support the findings of guilty of the indecent acts and indecent liberties offenses involving Lisette and Tiffany. Secondly, Specifications 1 and 2 of Additional Charge II (indecent liberties) are multiplicious for both findings and sentencing purposes. Finally, the civilian defense counsel was ineffective in the representation of the appellant during the sentencing phase of the trial. We hold that, the evidence is both legally and factually sufficient to sustain findings of guilty to Specifications 2 and 3 of Additional Charge I and Specifications 1 and 2 of Additional Charge II. We further hold that Specifications 1 and 2 of Additional Charge II are not multiplicious for findings, but are multiplicious for sentencing. We also hold that his civilian defense counsel did provide effective representation during the sentencing portion of the trial.

I. SUFFICIENCY OF THE EVIDENCE

We first turn to the legal and factual sufficiency of the evidence for the offenses of indecent acts and indecent liberties against Lisette and Tiffany. Evidence is legally sufficient when a reasonable fact-finder, viewing the evidence in the light most favorable to the prosecution, can find all the essential elements of the offense beyond a reasonable doubt. Evidence is factually sufficient when, after weighing the evidence and making allowance for not having personally observed the witnesses, the members of this Court are convinced of the appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 M.J. 324 (C.M.A.1987).

To convict the appellant of the offense of committing indecent acts, the government had to prove that the appellant committed a certain act or acts upon the body of Lisette as alleged; she was not the spouse of the appellant and was under the age of 16 years; the acts were indecent and were committed with the intent to arouse the appellant’s and/or Lisette’s sexual desires; and that, under the circumstances, the conduct of the appellant was to the prejudice of good order and discipline in the Army or of a nature to bring discredit on the Army. Manual for Courts-Martial, United States, 1984, Part IV, para. 87b(1) [hereinafter MCM, 1984]. To convict the appellant of the offense of indecent liberties, the government had to prove that the appellant committed a certain act or acts in the presence of Lisette and Tiffany; the girls were not the spouse of the appellant and that they were under the age of 16 years; the acts constituted the taking of indecent liberties; the appellant committed these acts with the intent to arouse his and/or the girls’ sexual desires; and that, under the circumstances, his conduct was to the prejudice of good order and discipline in the Army, or was of a nature to bring discredit upon the Army. MCM, 1984, para. 87b(2). “Indecent” is that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations. MCM, [988]*9881984, para. 90(c). Some acts are indecent because of their intrinsic character. United States v. Gaskin, 31 C.M.R. 5, 7 (C.M.A. 1961). Other acts are indecent because of the circumstances surrounding the act rather than the nature of the act itself. United States v. Drake, 26 M.J. 553 (A.C.M.R.1988); United States v. Blake, 33 M.J. 923 (A.C.M.R.1991).

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Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 984, 1992 CMR LEXIS 340, 1992 WL 63016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-whitcomb-usarmymilrev-1992.