United States v. Davis , 1998 CAAF LEXIS 778 ( 1998 )

PER CURIAM:

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of assault with intent to commit rape, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. Pursuant to his pleas, the court-martial also convicted appellant of wrongfully using marijuana, in violation of Article 112a, UCMJ, 10 USC § 912a. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 6 months, total forfeitures, and reduction to the lowest enlisted grade.¹

The Court of Criminal Appeals, 1997 WL 206033, held that the military judge erred by not instructing the members on indecent assault, a lesser offense included in assault with intent to commit rape. Unpub. op. at 2-3. The court below affirmed only the lesser offense of indecent assault; it reassessed and affirmed the sentence. Id. at 5. Appellant contends that the court below erred by not ordering a sentence rehearing. We granted review. 48 MJ 327 (1997).

The charges arose when appellant and two friends met three young women at a camp site. The group talked, drank alcoholic beverages, and smoked marijuana. Two of the women returned to their tent and fell asleep. Appellant entered the tent, pulled up one woman’s shirt, unbuttoned her shorts, and was kneeling between her legs when one of the women awoke and cried out. Appellant fidgeted with his clothing for a few seconds and then left the tent. Unpub. op. at 2.

After a Court of Criminal Appeals sets aside a guilty finding, it “must first determine what sentence the court-martial would probably have adjudged if the error had not been committed at trial. No higher sentence may be affirmed by the appellate court than would have been adjudged at trial absent the error.” United States v. Peoples, 29 MJ 426, 427-28 (CMA 1990) (citation omitted). The court may reassess a sentence instead of ordering a sentence rehearing, if it “confidently can discern the extent of the eiTor’s effect on the sentencing authority’s decision.” United States v. Reed, 33 MJ 98, 99 (CMA 1991). The legal test on appeal is whether the sentence assessed by the lower court “‘is appropriate in relation to the affirmed findings of guilty’ so as to ‘assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed.’” United States v. Poole, 26 MJ 272, 274-75 (CMA 1988). We review the lower court’s assessment for abuse of discretion, and “[w]e will only disturb the [lower court's] reassessment in order to ‘prevent obvious miscarriages of justice or abuses of discretion.’ ” United States v. Jones, 39 MJ 315, 317 (CMA 1994).

Applying the foregoing principles, we hold that the court below did not abuse its discretion. After that court reduced the offense from assault with intent to commit rape to indecent assault, appellant remained convicted of a serious sexual offense in addition to wrongful use of marijuana. Although we agree with the dissenting judge that the word “rape” can cause “a sense of outrage” in some cases, 48 MJ at 496, it is clear from the record that the court members were not outraged in this case. Even though they were sitting as a general court-martial, they imposed a special court-martial sentence. They sentenced appellant to a mere 6 months’ confinement, even though he was facing confinement for 22 years for the 2 offenses. See paras. 37e(l)(b) and 64e(l), Part IV, Manual for Courts-Martial, United States (1995 ed.). If the court-martial had convicted appellant of indecent assault instead of assault with intent to commit rape, he still would have been facing total confinement for 7 years (para. 63e, Part IV, Manual, supra), far more than the 6 months that was adjudged.

Based on its review of the record, the court below “believe[d] that the members sentenced appellant for his actions and not the name of his offense.”² The record amply demonstrates that the maximum imposable punishment was not a significant factor in sentencing. The court below, citing United States v. Sales, 22 MJ 305 (CMA 1986), and United States v. Suzuki, 20 MJ 248 (CMA 1985), concluded that “absent the error the members would have imposed the same sentence.” Unpub. op. at 3. In so doing, the court below did not seek to substitute its judgment for that of the sentencing authority, but instead performed the function required by our decisions in Sales and Suzuki. In that regard, it is noteworthy that, in Sales, we remanded the ease for further action by the court below when it found error, but only concluded that the sentence was “appropriate.” We noted, citing Suzuki and Article 59(a), UCMJ, 10 USC § 859(a), that the court below has two separate functions with respect to sentencing — assessing the prejudice of any error and determining sentence appropriateness. We stated that, if the court “chose to affirm the original sentence, [the accused] was entitled to a conscientious determination by that court that the sentence originally adjudged had not been affected by the military judge’s error at trial.” We added that the court “was not free to affirm that sentence unless it was also convinced that — even in the absence of the ... error — the court-martial would have adjudged the same sentence.” 22 MJ at 309.

In the present case, the court below made the determination required by Suzuki and Sales. Unpub. op. at 3. In view of the appellate record before us, particularly the relatively light nature of the sentence in this case, we find no abuse of discretion or miscarriage of justice.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

1 . The court-martial order (GCMO 3) and the opinion of the court below erroneously list appellant's rank as airman basic. He was an airman first class at the time of trial.

2 . The dissenting judge refers to a post-trial statement submitted by a court member, Captain (Capt) Hoang. 48 MJ at 497. We do not decide whether the statement violates Mil.R.Evid. 606(b) and RCM 923, Manual for Courts-Martial, United States (1995 ed.). See United States v. Loving, 41 MJ 213, 234-39 (1994), aff'd on other grounds, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). While Capt Hoang asserted that the finding "might have been different” if indecent assault had been an option, he made no comments regarding the sentence. He requested only "that clemency be granted in the form of finding A1C Davis guilty of indecent assault.” The court below did exactly what Capt Hoang requested.